Skills in Demand Visa

Any time now the Federal Government is set to introduce a new temporary skilled work visa – the Skills in Demand Visa. This visa will remain as a subclass 482 but will replace the current regime with a new three-tiered system.

The three-tiered system will consist of:

1. Specialist skill pathway: this pathway will provide fast-track processing for highly skilled migrants who meet the general eligibility criteria and earn a minimum salary of AUD 135,000 annually (to be indexed annually). There is no occupation list applicable for this pathway however, trade workers, machine operators and labourers will be excluded from accessing this pathway.
2. Core skills pathway: this pathway will attract most temporary skilled migrants. This pathway will be available to those whose occupation is on a new Core Skills Occupation List and earn at least a minimum salary (currently, the minimum salary under the subclass 482 visa program is AUD 73,150 or the relevant average market salary).
3. Essential skills pathway: this will be a more regulated pathway designed for migrant workers working in essential sectors and occupations that are vital to supporting the Australian economy. The occupations and sectors are expected to be identified in consultation with key stakeholders, including state and territory governments, unions, and businesses.

The Federal Government is said to establish a medium service standard of 21 days for the Skills in Demand Visa and seven days for the Specialist Skills Pathway.

As part of the transition to the new Skills in Demand Visa, the Federal Government has been rolling out several updates over the past few months to the current subclass 482 visa program. These include:

1. Recognising part-time or casual work experience. Part-time, casual work may be included in the calculation of the mandatory two years’ work experience requirement.
2. Removal of the five-year time limit for work experience. Work experience is no longer required to have been gained within the 5 years immediately preceding the subclass 482 visa application.
3. Visa holders will have 180 days at a time, or a cumulative maximum of 365 days throughout the visa period to secure a new sponsor, apply for a different visa, or arrange their departure from Australia in the event the employment with the current sponsor ends, provided their subclass 482 visa remains valid for the duration of this period. During this period visa holders can work for other employers and in other occupations. This is a significant expansion of the current laws which are designed to promote mobility for visa holders.

With the introduction of the Skills in Demand visa, in the future we will likely see: 

1. Reduced work experience requirements. The work experience requirements for visa applicants will likely be reduced from 2 years to 1 year of full-time work experience in their occupation or related field.
2. The Federal Government create a model for employers to pay trailing charges and fees (e.g., monthly or quarterly) to make hiring a new migrant less onerous. Currently employers have to make an upfront payment to the Skilling Australians Fund for each 12-month period during which they employ overseas workers on a subclass 482 visa.
3. A public register of approved sponsors created, including the number of migrants sponsored and their occupations, will be developed to assist migrants wishing to find a new sponsor.
4. Labour market testing to be streamlined. The Federal Government will also consider moving away from the employer conducted labour market testing towards a mechanism of independent verification of labour market needs.

With the Skills in Demand visa employers will now have three clear pathways to find labour and the specific skills required for their business. Additionally, visa processing times will likely become more efficient.

Workplace Justice Visa

The Workplace Justice Visa, effective from 1 July 2024, is an initiative designed to protect migrant workers from workplace exploitation. This visa allows exploited workers to remain in Australia temporarily for 6 to 12 months to pursue claims against their employers without the risk of visa cancellation. This visa has no cost and family members can also be included if they are in Australia with the visa applicant.

A workplace exploitation matter includes underpayment claims or non-payment of wages or other workplace entitlements, contractor misclassification, unlawful deductions from wages, unfair dismissal, non-compliance with workplace health and safety requirement, bullying, sexual harassment, discrimination, and coercion or undue influence or pressure or misrepresentation.

For employers, it is crucial to understand the implications of the Workplace Justice Visa. It is possible that employers may see an uptick in workplace exploitation matters from migrant workers. Ensuring compliance with workplace laws and maintaining fair treatment of all employees not only fosters a positive work environment but also mitigates the risk of legal claims where this visa may come into play.

Migration Amendment (Strengthening Employer Compliance) (Cth) 2024

The Migration Amendment (Strengthening Employer Compliance) (Cth) Act 2024, which commenced on 1 July 2024, introduces stringent measures to enhance employer compliance with migration laws. This Act aims to deter the exploitation of migrant workers by imposing severe penalties, including criminal offences, for breaches of work-related visa conditions.

Key provisions include:

• Three work-related offences that make it illegal for employers (including sponsors and labour hire intermediaries) to:
  • Coerce or pressure a temporary visa holder to breach a work-related visa condition
  • Coerce or pressure a non-citizen without a valid visa to accept or agree to a work-related arrangement, or
  • To use a worker's temporary visa status to exploit them in the workplace.
• Criminalising coercion and increased penalties: it is now a crime to coerce or unduly pressure individuals in relation to the above. Criminal contraventions may result in two years of imprisonment or 360 penalty units (AUD 118,800 for individuals), 1800 penalty units (AUD 594,000 for a body corporate) or both. A complete list of penalties can be found here.
• Civil penalties: A civil penalty of up to 240 penalty units (AUD 79,200 for individuals) or 1200 penalty units (AUD 396,000 for a body corporate) applies for certain contraventions involving coercion or undue pressure. A complete list of penalties can be found here.
• Employer sanctions: there are measures to declare persons to be prohibited employers and temporarily bar employers from hiring additional temporary visa holders.
• Public Disclosures: should an employer be subject to a sanction; the Minister may publish names of the prohibited employer on the Department of Home Affairs website.

These changes highlight the importance of maintaining lawful employment practices.