AltLJ Vol 33:3 September 2008 — 147 ARTICLES T he temporary skills migration program has been playing a pivotal role in addressing the labour and skills shortages in the Australian labour market since its inception in 1996. The monolithic approach to the management of temporary skills migration however, has caused difficulties with accommodating different interests and needs across a range of industries. The imbalance caused by the current system is evident from the fact that it has left some industries with chronic labour and skills shortages, while in others the oversupply of skills has had negative impacts upon the local labour market. Abhorrent exploitation of migrant workers has caught media attention lately, prompting the government to tighten the monitoring and sanctions mechanisms. 1 However, problems still remain within the existing system itself, even though attempts have been made to address some abusive practices by employers. Under the previous government, the Joint Standing Committee on Migration ( JSCOM) issued a comprehensive report in August 2007 on the temporary business visa program. 2 In response to the final report of the External Reference Group recommending the development of a long-term strategy, 3 the current government announced a review of the subclass 457 visa program, 4 appointing Industrial Relations Commissioner Barbara Deegan to examine the integrity of the program. 5 It is therefore timely to examine both the key problems underlying the current temporary business visa program and the potential reform plans. This study will focus on three alternative models — the skills advisory body model, the skills assessment model, and the industry self-regulation model. It will examine how effectively each model can operate to identify labour shortages and ensure skill level, while accommodating different needs across a range of industry sectors. Key issues surrounding the 457 Visa The subclass 457 visa accommodates eight different entry streams, 6 including the Australian business sponsorship stream which highlights the tension between these competing demands. The rationale behind this scheme lies with the concerns expressed by Australian businesses, economic and trade agencies that previous mechanisms for bringing in skilled overseas workers were too complex and time consuming, causing substantial economic losses. 7 Industry groups were therefore critical of the costly and time-consuming ‘labour market testing’, which required employers to ‘demonstrate that the jobs to be filled by foreign nationals had first been offered to Australian residents and that none suitable were available’. 8 The ‘deregulation’ of migrant recruitment by the introduction of the subclass 457 visa scheme which abolished the ‘labour market testing’ requirement, helped streamline the visa application process, making it user-friendly for employers. The issues surrounding the 457 visa are multifaceted, revolving around the effectiveness of the system in protecting migrants as well as local labourers. 9 First, there are widespread concerns that temporary migrant workers are vulnerable to, and have been subject to, exploitation by their employers. Under the current system, employers must pay the Australian award wage or the minimum salary set by the Minister through Gazette Notice, which is ‘aimed at excluding low-skilled or unskilled workers’. 10 There has been a great deal of media attention on the ‘slave labour ’ issue in breach of the minimum salary level and working conditions required under the migration law as well as workplace relations law. 11 Yet issues surrounding wages and work conditions do not end there. In industries where the minimum salary level is lower than the market rates, concerns are expressed that this has downward pressure on wages of local workers. 12 In other industries such as agricultural, catering and nursing, the minimum salary level is reportedly significantly higher than the average salary. 13 The JSCOM considered alternative mechanisms for setting salary levels, including the identification and application of the market rate for each eligible occupation, and the relevant level of enterprise. However, it failed to go beyond simply recommending that alternatives for calculating salary levels be investigated. 14 The Committee’s position appears to be largely influenced by the practical difficulties involved in calculating the ‘market rate’, as pointed out by the Department of Employment and Workplace Relations. It could only be determined at an industry level and be subject to variation depending on the experience and quality of work as well as the place of employment. Second, concerns have been raised as to the current arrangement for assessing and recognising the competencies of migrant workers, particularly in relation to overseas trained doctors. The processes and standards of skills assessment for overseas trained doctors seeking a temporary visa vary from jurisdiction to jurisdiction. 15 Although the recent Council of Australian Governments’ initiative towards REFERENCES 1. Migration Amendment (Sponsorship Obligations) Bill 2007. 2. Joint Standing Committee on Migration, Temporary Visas…Permanent Benefits (August 2007), available via <aph.gov.au/ house/committee/mig/457visas/report. htm> at 3 June 2008 (hereinafter JSCOM Report). 3. Visa Subclass 457 External Reference Group, Final Report to the Minister for Immigration and Citizenship (April 2008), <minister.immi.gov.au/media/media- releases/2008/erg-final-report-april-2008. pdf> at 3 June 2008. 4. ‘Govt to Review 457 Visa Program’, Sydney Morning Herald (Sydney), 14 April 2008. 5. ‘IR Expert to Oversee Temporary Skilled Migration Review’, (Press Release, 14 April 2008), <minister.immi.gov.au/media/ media-releases/2008/ce08035.htm> at 3 June 2008. 6. Migration Regulations 1994 (Cth) Schedule 2, subcl 457.223(1)–(10). 7. Committee of Inquiry into the Temporary Entry of Business People and Highly Skilled Specialists, Business Temporary Entry – Future Directions (1995). See also, Mary Crock, ‘Contract or Compact: Skilled Migration and the Dictates of Politics and Ideology’ (2002) 16 Georgetown Immigration Law Journal 133, 141–144. 8. Bob Kinnaird, ‘Current Issues in the Skilled Temporary Subclass 457 Visa’ (2006) 14(2) People and Place 49, 50. 9. See, JSCOM Report, above n 2, 17. 10. Siew-Ean Khoo et al, ‘A Global Labor Market: Factors Motivating the Sponsorship and Temporary Migration of Skilled Workers to Australia’ (2007) 41(2) International Migration Review 480, 484. 11. See, eg, Matthew Moore and Malcolm Knox, ‘Foreign Workers ‘Enslaved’’, The Age (Melbourne) 28 August 2007. 12. See, eg, Australian Council of Trade Unions, Submission No 39 to the JSCOM, 18–19. Submissions to the JSCOM, <aph. gov.au/house/committee/mig/457visas/ subs.htm> at 3 June 2008. REFORM OF SUBCLASS 457 VISA SCHEME Proposal of three models HITOSHI NASU