Australia: Regulatory amendments for 457 visa program

The Department of Immigration and Border Protection will implement changes to the 457 visa regulations on December 1, 2015 that clarify some 457 visa conditions, namely those concerning mandatory licensing requirements, and strengthen existing policies in relation to 457 visas obtained via work agreements or enterprise agreements. The changes are largely a response to the negotiation and implementation of the China-Australia Free Trade Agreement (ChAFTA).

Licensing, Registration and Professional Memberships

Subclass 457 visa holders are required to hold any license, registration or professional membership that is mandatory for their nominated occupation in their geographic location. For visa applications submitted on or after December 1, such authorizations must be obtained:

  • Within 90 days of arrival in Australia if the visa holder was outside Australia when the visa was granted; or
  • Within 90 days of the grant of the visa if the visa holder was in Australia when the visa was granted.

Additionally, a person cannot begin working until the relevant license, registration or professional membership is obtained.

The Department must be notified in writing if an application for a license, registration or professional membership is refused, revoked or cancelled. The visa holder must also comply with any condition of their licenses, registrations or professional memberships and must not engage in any work that is inconsistent with such authorizations.

457 Visas Obtained Via Work Agreements

Employers seeking to sponsor foreign workers under the 457 visa program via a work agreement must demonstrate in their 457 nomination applications that they completed labor market testing. “Work agreements” is the collective term for arrangements negotiated between an employer and the Minister for Immigration and Border Protection for concessions from standard 457 program requirements related to skill level, English language proficiency, and minimum salary.

Labor market testing has already been a requirement in the Department’s Immigration Policy, but by mandating it in the Migration Regulations, the Department seeks to strengthen its applicability and ensure that lower-skilled occupations are also subject to the requirement.

The new regulations also require the Minister to publish guidelines on Australia’s policies and procedures in relation to work agreements and project agreements.

Market Salary Set by Enterprise Agreement

Subclass 457 visa holders must receive terms and conditions of employment that are no less favourable than those that apply to Australian workers. The amendments clarify that if an Enterprise Bargaining Agreement (EBA) applies to the workplace, the terms and conditions of employment set by the EBA establish the market salary that must be used for the purposes of any 457 nomination in that workplace.  

Work Start Dates for Applicants in Australia

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

What This Means for Employers and Foreign Nationals

Employers should benefit from the greater clarity concerning the 457 visa program. Employers should contact their immigration service provider if they have reason to believe the changes will impact any of their existing or upcoming 457 applications.

Stuart Beaty

Celsium, Birmingham, UK