Australia: Changes to 457 visa program to take effect 1 December 2015

The Department of Immigration and Border Protection has announced changes to the 457 program to strengthen work agreement and enterprise agreement requirements, and provide further clarification on existing 457 visa conditions. The changes will take effect from 1 December 2015. 

From 1 December 2015, changes to the 457 visa regulations will be implemented to clarify and strengthen existing policy in relation to work agreements, enterprise agreements and some 457 visa conditions. These changes are largely a response to the negotiation and implementation of the China-Australia Free Trade Agreement (ChAFTA).

Work agreements

The 457 program includes thresholds for skill level, English language proficiency, and minimum salary. There are a number of pathways through which employers are able to negotiate an agreement with the Minister for Immigration and Border Protection (the Minister), collectively known as 'work agreements', for certain limited concessions to those standard requirements.

For nomination applications lodged on or after 1 December, labour market testing will be required by employers seeking permission via a work agreement to sponsor under the 457 program. This is already a requirement in Immigration Policy, but has now been inserted in the Migration Regulations to strengthen its applicability and ensure that lower-skilled occupations are also subject to these requirements.

The Minister will also be required to publish guidelines relating to the Commonwealth’s policy and procedures in relation to work agreements and project agreements.

Enterprise agreements

The changes also clarify the requirement that 457 visa holders must be subject to equivalent terms and conditions of employment to Australian workers must also be satisfied where an enterprise agreement is in force under the Fair Work Act 2009. The intention of this provision is to ensure that it is the enterprise agreement that sets the market salary benchmark where one applies to the workplace, regardless of general salary market information that may be available from other sources or whether there is anyone in the workplace working outside the terms of the enterprise agreement.

Licensing, registration and membership

457 visa holders are required to hold any licence, registration or membership that is mandatory for the performance of their nominated occupation in their location. For visa applications lodged on or after 1 December, this mandatory authorisation must be obtained:

  • within 90 days of arrival in Australia, where the visa holder was outside Australia when the visa was granted; or
  • within 90 days of visa grant, where the visa holder was in Australia when the visa was granted.

A person cannot commence work until the relevant licence, registration or membership is obtained.

The Department must be notified in writing if an application for a licence, registration or membership is refused, revoked or cancelled. The visa holder must also comply with any conditions of the licence, registration or membership and must not engage in any work that is inconsistent with this authorisation.

Commencing work

A 457 visa holder is required to commence work within 90 days of arrival in Australia. The changes clarify that where the 457 holder was in Australia when the visa was granted, that they must commence work within 90 days from the visa grant date.

Stuart Beaty

Celsium, Birmingham, UK