Attachment A ON-HIRE INDUSTRY LABOUR DEED OF AGREEMENT FOR ENTRY OF SKILLED OVERSEAS WORKERS [NAME OF ON-HIRE COMPANY] PTY LTD PREAMBLE This Deed of Agreement (the “Agreement”) reflects arrangements to enable the temporary entry of Skilled Overseas Workers where the Company has demonstrated to the Commonwealth that sufficient numbers of Australian workers with the required skills for occupations under ASCO Major Groups 1, 2, 3 or 4 as specified in the Legislative Instrument by the Commonwealth for the Subclass 457 visa programme are not readily available for employment in the On-hire industry. It also reflects the Commonwealth’s intention to work with the On-hire industry to ensure that its access to Skilled Overseas Workers remains demonstrably in Australia’s best interests. 1. PARTIES This Agreement is between: The Commonwealth of Australia (the “Commonwealth”); and [Name of the On-hire Company] Pty Ltd (ABN xxx xxx xxx) of xxx xxx, in the State of XXX (the “Company”). 2. TERM OF OPERATION Unless terminated earlier, or extended in accordance with this agreement, this Agreement will operate for a period of three years from the date the Commonwealth signs the Agreement (the “Term of Operation”).
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Attachment A ON-HIRE INDUSTRY
LABOUR DEED OF AGREEMENT FOR ENTRY OF SKILLED OVERSEAS WORKERS
[NAME OF ON-HIRE COMPANY] PTY LTD
PREAMBLE
This Deed of Agreement (the “Agreement”) reflects arrangements to enable the temporary entry of
Skilled Overseas Workers where the Company has demonstrated to the Commonwealth that
sufficient numbers of Australian workers with the required skills for occupations under ASCO
Major Groups 1, 2, 3 or 4 as specified in the Legislative Instrument by the Commonwealth for the
Subclass 457 visa programme are not readily available for employment in the On-hire industry. It
also reflects the Commonwealth’s intention to work with the On-hire industry to ensure that its
access to Skilled Overseas Workers remains demonstrably in Australia’s best interests.
1. PARTIES
This Agreement is between:
The Commonwealth of Australia (the “Commonwealth”); and
[Name of the On-hire Company] Pty Ltd (ABN xxx xxx xxx) of xxx xxx, in the State of XXX
(the “Company”).
2. TERM OF OPERATION
Unless terminated earlier, or extended in accordance with this agreement, this Agreement will
operate for a period of three years from the date the Commonwealth signs the Agreement (the
“Term of Operation”).
3. PURPOSE
This Agreement provides for the recruitment and temporary entry and stay in Australia of Skilled
Overseas Workers while aiming to:
(i) protect jobs of Australian workers;
(ii) secure flow-on economic benefits to Australia; and
(iii) ensure that overseas workers are treated fairly and reasonably.
4. INTERPRETATION
In this Agreement, unless the contrary intention appears:
“Agreement” means this [Name of On-hire Company] Labour Deed of Agreement, any
Schedules and any document expressly incorporated.
“AQF” means Australian Qualifications Framework.
“ASCO” means the Australian Standard Classification of Occupations Second Edition.
“Australian”, where to context so admits, means an Australian citizen (whether born in
Australia or elsewhere) or a non-citizen who, being usually resident in Australia, is the holder
of a permanent visa granted under the Migration Act 1958.
“Australian Apprentices” includes apprentices who have signed a training contract (under
the Commonwealth’s Apprenticeship Scheme) which is registered with the relevant State or
Territory Government authority.
“Client Organisation” means a client of the Company, other than a Related Business of the
Company, to whom a Skilled Overseas Worker has been on-hired to perform certain specified
duties for a specified period in return for a fee payable by the Client Organisation.
“Commonwealth” means the Commonwealth of Australia represented by DEWR and DIAC
or such other government agency(ies) or department(s) may from time to time, administer this
Agreement on behalf of the Commonwealth.
“Company” means a company authorised in accordance with Clause 6 of this agreement, and
where the context so admits, includes the officers, employees, volunteers, bailees, agents and
authorised sub-contractors of the Company.
“DEWR” means the Department of Employment and Workplace Relations, or such other
government agency or department as may, from time to time, administer this Agreement on
behalf of the Commonwealth.
“DIAC” means the Department of Immigration and Citizenship, or such other government
agency or department as may, from time to time, administer this Agreement on behalf of the
Commonwealth.
“Former Sanctioned Sponsor” means a person who:
(i) was ever the subject of a bar imposed pursuant to Section 140L of the Migration
Act 1958 in relation to Subclass 457 visas; or
(ii) was ever the subject of cancellation action under section 137B of the same Act.
“Industrial Instrument” means an instrument made under or given effect by or recognised
under a law of the Commonwealth or the State or Territory that regulates workplace relations
and prescribes terms and conditions of employment between employers and employees
including, but not limited to, an award or agreement made under or given effect by or
recognised under the Workplace Relations Act 1996 or a State or Territory law that regulates
the relationship between employers and employees.
“Job Network” is a national network of private and community organisations which, under
contract to DEWR, provide assistance to Australian job seekers based on issues such as
personal circumstances, barriers to employment, level of disadvantage, duration of
unemployment and available job opportunities.
“Legislative Instrument” means a notice in the Commonwealth of Australia Gazette or
relevant instrument in writing.
“Letter of Appointment” means a letter provided by the Company to the Skilled Overseas
Worker specifying the Skilled Overseas Worker’s terms and conditions of employment.
“Migration Legislation” means the Migration Act 1958 and the Migration Regulations 1994,
as in force from time to time.
“Minimum Salary Level (MSL)” has the same meaning as in the Legislative Instrument
made from time to time under regulation 1.20B of the Migration Regulations 1994.
The MSL start date is:
(i) if the Skilled Overseas Worker is not in Australia when the visa is granted, the
day on which the Skilled Overseas Worker starts working for the Company, or
the day that is 28 days after the day on which the person enters Australia,
whichever is the earlier; or
(ii) if the Skilled Overseas Worker is in Australia when the visa is granted, the day
on which the Skilled Overseas Worker starts working for the Company, or the
day that is 28 days after the day on which the visa is granted, whichever is the
earlier.
“Migration Occupations in Demand List (MODL)” means those occupations and
specialisations identified in the relevant Legislative Instrument and which have been assessed
by DEWR as being in national demand and with good job prospects.
“Nominate”, “Nominated” or “Nomination” means a nomination under Migration
Regulations 1994 1.20G or 1.20GA by the Company of a Primary Visa Applicant for a
Subclass 457 Business (Long Stay) visa.
“Notify” “Notified” or “Notification” means to give notice, make a request or other
communication in accordance with Clause 9.
“OH&S” means occupational health and safety.
“On-hire” means a Company’s business activities which include activities relating to either
or both of:
(i) the recruitment of labour for supply to other Unrelated Businesses (Client
Organisations); and
(ii) the hiring of labour to other Unrelated Businesses (Client Organisations).
“Overseas Temporary Worker” means a non-Australian person who is resident in Australia
on a temporary visa with a work right – this may include, without limitation, Subclass 457
Business (Long Stay) visa holders, Occupational Trainee (subclass 442) visa holders, Working
Holiday Maker (subclass 417) visa holders and Student (Subclass
570,571,572,573,574,575,576) visa holders.
“Primary Visa Applicant” or “Primary Visa Holder” means person Nominated under this
Agreement as a Skilled Overseas Worker in his or her capacity as a visa applicant or visa
holder respectively.
“Recent Australian Graduates” includes Australians who completed higher education
(university) courses in the last 12 months;
“Related Business” means a business or owned and operated by an entity which is related to
the Company within the meaning of the Corporations Act 2001.
“Report” means information provided by the Company to the Commonwealth to demonstrate
the Company’s compliance with its obligations under this Agreement and in a format
determined to be fit for purpose by the Commonwealth.
“Sanctioned Sponsor” means a person who is the subject of a bar imposed pursuant to
Section 140L of the Migration Act 1958 in relation to Subclass 457 visas.
“Scholarship” means financial contribution by the Company to a scholarship, bursary or
award administered by an organisation which is acceptable to the Commonwealth and which
is targeted at Australian citizens or Australian permanent residents completing courses
appropriate to employment in MODL occupations.
“Secondary Visa Applicant” or “Secondary Visa Holder” means the member of the family
unit or interdependent partner or dependent child of the interdependent partner, as defined in
the Migration Legislation, of the Primary Visa Applicant or Primary Visa Holder.
“Skilled Overseas Worker” has the definition specified in Schedule A of this Agreement.
“Standard Business Sponsor” has the definition specified in regulation 1.20B of the
Migration Regulations 1994.
“Structured Training” means all training activities which have a specified content or
predetermined plan designed to develop employment related skills and competencies. It
includes, without limitation, instruction or a combination of instruction and monitored and
assessed practical work such as: workshops, lectures, tutorials and seminars; computer-
assisted training; training by correspondence and monitored self-paced training.
“Training Expenditure” means all expenditure by the Company for its workforce on
Structured Training (excluding wages and salaries of the persons receiving training) including
that provided by registered training organisations and Scholarships as defined for the purposes
of this Agreement (Refer to Clauses 4 and 7.83(iii)).
“Unrelated Business” means a business other than a Related Business.
“Workforce” means all permanent and contract workers with the Company including
Australian citizens and Australian permanent residents and Overseas Temporary Workers.
5. ADMINISTRATION OF THIS AGREEMENT
5.1 This Agreement will be administered for the Commonwealth by DIAC and DEWR.
5.2 For DIAC, the Labour Agreement Section of the DIAC National Office will administer this
Agreement. (Refer to Clause 16)
5.3 For DEWR, the Migration Policy and Analysis Section of the DEWR National Office will
administer this Agreement. (Refer to Clause 16)
5.4 [Insert location(s) of DIAC office(s) agreed with the Company] will process all Nominations
and associated temporary visa applications. (Refer to Clause 7.41)
5.5 In this Agreement, unless the contrary intention appears:
(i) words importing a gender include any other gender;
(ii) words in the singular include the plural and words in the plural include the singular;
(iii) clause headings are inserted for convenient reference only and have no effect in limiting
or extending the language of provisions to which they refer;
(iv) words importing a person include a partnership and a body whether corporate or
otherwise;
(v) all references to dollars are to Australian dollars;
(vi) a reference to any legislation or legislative provision includes any statutory modification
substitution or re-enactment of such legislation or legislative provision
(vii) where any word or phrase is given a defined meaning, any other part of speech or other
grammatical form in respect of that word or phrase has a corresponding meaning; and
(viii) a reference to writing means any representation of words, figures or symbols, whether or
not in a visible form.
6. THOSE AUTHORISED TO RECRUIT SKILLED OVERSEAS WORKERS UNDER
THIS AGREEMENT
6.1 To be a Company authorised by the Commonwealth in its absolute discretion to recruit Skilled
Overseas Workers under this Agreement, the Company must have provided the Commonwealth
with details of the information requested under Schedule B ‘Information Required for Access to a
Labour Agreement’ and demonstrated the following to the satisfaction of the Commonwealth:
(i) they require Skilled Overseas Workers, with skills or experience not readily available
within the Australian labour market for occupations under ASCO Major Groups 1, 2, 3
or 4 as specified in the Legislative Instrument by the Commonwealth for the Subclass
457 visa programme;
(ii) they have a satisfactory record of training, as assessed against information provided in
accordance with Schedule C;
(iii) they have a satisfactory record of compliance with Commonwealth and State/Territory
workplace relations provisions;
(iv) unless Skilled Overseas Workers are recruited exclusively to MODL occupations and
positions, have an effective plan which through increased training and employment of
Australians will, over the Term of Operation, result in a reduced reliance on Overseas
Temporary Workers. This plan will include the following reporting benchmarks:
a. the numbers employed and in which occupations and over what periods of
time/dates;
b. the target numbers to be employed and trained, and during what periods of
time/dates; and
c. broad reasons for those leaving their employ and that of the Client Organisation’s
employ;
(v) a Letter of Appointment will be provided to each Skilled Overseas Worker specifying
that the Skilled Overseas Worker’s terms and conditions of employment and is otherwise
in accordance with the terms and conditions of this Agreement, including the
requirements of Clause 7.66;
(vi) they will only recruit Skilled Overseas Workers under the terms and conditions of this
Agreement;
(vii)they will, for each Skilled Overseas Worker, enter and maintain a contract with the Client
Organisation. Any such contract entered into must:
(a) not be inconsistent with the Skilled Overseas Worker’s Letter of Appointment and
the terms and conditions of this Agreement, and in particular must address OH&S
issues; and
(b) ensure reasonable access by the Commonwealth to the Client Organisation’s
premises for the purposes of monitoring the Skilled Overseas Workers, in respect of
the services provided by the Skilled Overseas Workers to the Client Organisation;
and
(viii) they have the financial viability to fulfil its obligations under this Agreement.
6.2 In considering the Company’s evidence, at any time, and subject to Clause 6.3, the
Commonwealth may consider whether the Company has achieved an adequate reduction in
reliance on Overseas Temporary Workers as per the plan in Clause 6.1(iv). In doing so, the
Commonwealth will have regard to a range of factors, including:
(i) the Company’s development and subsequent implementation of the plan required under Clause 6.1(iv); and
(ii) the impact of any re-structuring, growth of or reduction in business, or acquisition of
the Company.
6.3 The Commonwealth acknowledges that in some circumstances, and subject to meeting all the
requirements of the Agreement, the Company may be able to demonstrate that it requires an
increased number of Skilled Overseas Workers in the short to medium term, so long as that the
Company demonstrates how the Company’s reliance on Overseas Temporary Workers will be
reduced as per the plan referred to in Clause 6.1(iv)over the Term of Operation.
6.4 The Company must provide the Commonwealth with details of its membership in any
industry or professional associations.
7. OBLIGATIONS OF THE COMPANY
7.1 GENERAL
The Company must:
(i) comply with any reasonable request by the Commonwealth to enable the
Commonwealth to exercises its rights and meet its obligations under Clause 8 of this
Agreement; and
(ii) pay the Commonwealth an amount equal to the costs incurred by the Commonwealth in
relation to all Primary and Secondary Visa Holders granted visas under this Agreement
including but not limited to the cost of public hospital services and the costs associated
with locating, detaining and removing former such visa holders;
(iii) agree to information concerning the Company which is relevant to the operation of this
Agreement being shared between relevant Commonwealth agencies, including DIAC,
DEWR, the Workplace Authority, the Workplace Ombudsman, the Australian Taxation
Office and the Australian Federal Police and relevant State and Territory agencies.
7.2 RECRUITMENT OF SKILLED OVERSEAS WORKERS
7.21 The Company may make Nominations in accordance with this Agreement.
7.22 If the Company uses the services of a migration agent to make Nominations for Overseas
Skilled Workers approved under this Agreement, the Company must only use the services of
migration agents who are registered with the Migration Agents Registration Authority
(MARA).
7.23 The Company must only engage Skilled Overseas Workers for on-hire to a Client Organisation
pursuant to the terms and conditions of this Agreement.
7.24 The Company must not request payment or reimbursement from Primary or Secondary Visa
Applicants/Holders for services relating to the Nomination or securing of employment
opportunities or for any costs incurred by the Company under Clause 7.66(v) or in relation to
any other services provided by the Company to Primary or Secondary Visa
Applicants/Holders.
7.25 The Company acknowledges that it has been advised by DIAC that workers in certain
countries may be required by overseas agents to pay money to secure the opportunity for
recruitment as a Skilled Overseas Worker.
7.26 When recruiting Skilled Overseas Workers, the Company must make all reasonable inquiries
to confirm that the Skilled Overseas Workers they recruit do not owe money as a result of
their recruitment.
7.27 The Company must not Nominate Primary or Secondary Visa Applicants whom it has
identified under Clause 7.26 as owing money as a result of their recruitment.
7.28 The Company must Report to the Commonwealth on its efforts, experiences and outcomes in
meeting its obligations under this Clause 7.2, both prior to Nomination and subsequently in
accordance with Clause 7.11.
7.29 The Company may require a Skilled Overseas Worker to undertake responsibilities and
perform duties other than those set out in Schedule A:
(i) where the requirement is made as part of the provision of suitable duties as required by
applicable workers’ compensation laws; or
(ii) where the requirement is made for bona fide OH&S reasons to provide a Skilled
Overseas Worker with restricted duties consistent with existing medical opinion. The
Company must Notify the Commonwealth immediately when any period of restricted
duties exceeds one week.
7.30 Where the Commonwealth has concerns with the frequency of Notifications or specific
Notifications made under Clause 7.29(ii), the Commonwealth may require the Company to
obtain approval from the Commonwealth for any continuing or future instances of a Skilled
Overseas Worker’s restricted duties. The Commonwealth may impose conditions on the
Company for the granting of any such approvals.
7.31 The Company shall Report to the Commonwealth indicating the number of Skilled Overseas
Workers who performed duties pursuant to Clauses 7.29(i) and 7.29(ii) and shall provide such
supporting information as is reasonably requested by the Commonwealth in relation to
requirements under Clauses 7.29(i) and 7.29(ii).
7.4 NOMINATIONS AND VISA APPLICATIONS
7.41 The Company must either electronically lodge all 457 Nominations together with the visa
applications and electronic attachments through DIAC’s online business lodgement service at
http://www.immi.gov.au/e_visa/employer-sponsored.htm or to the DIAC office(s) specified at
Clause 5.4, details of which are provided in the DIAC website at:
• an incomplete or partially completed Schedule C will not be accepted;
• the Schedule will be assessed by DEWR within 10 working days of receipt; and
• information on other training initiatives implemented by the Company for Australians can
be attached to this Schedule.
NAME AND ABN OF [ON-HIRE COMPANY NAME]:
Registered Company Name:
ABN:
Address:
Phone: Fax:
CONTACT PERSON WITH [ON-HIRE COMPANY NAME]:
Name and Position:
Address:
Phone: Fax: email:
CURRENT STAFFING PROFILE FOR [ON-HIRE COMPANY NAME] BY RESIDENCE STATUS
Total Australian citizens and permanent residents (employees and contractors):
Including: Australian Skilled Workers:
Indigenous Australians:
Mature Age Australians (over 45 years old):
Total Overseas Temporary Workers:
Including: Sponsored Overseas Workers:
“Other” Overseas Workers:
CURRENT NUMBER OF ENTRY-LEVEL EMPLOYEES (LESS THAN 12 MONTHS
EXPERIENCE) EMPLOYED OR PLACED BY [ON-HIRE COMPANY NAME]
Recent Australian Graduates:
Australian Apprentices:
Informal Trainees:
EXPECTED NUMBER OF ENTRY-LEVEL AUSTRALIAN EMPLOYEES TO BE RECRUITED
OR PLACED BY [ON-HIRE COMPANY NAME] IN THE NEXT 12 MONTHS
Recent Australian Graduates:
Australian Apprentices:
Informal Trainees:
ANNUAL EXPENDITURE ON TRAINING AUSTRALIANS AND GROSS WAGES
EXPENDITURE BY [ON-HIRE COMPANY NAME]
Training Expenditure: $
Gross Wages Expenditure (including employees and contractors): $
DETAILS OF CONSULTATIONS WITH JOB NETWORK MEMBERS ON THE RECRUITMENT
OF AUSTRALIAN JOBSEEKERS
Name of Job Network Member (JNM) or other providers of Australian Government
Employment Services (such as CRS Australia or the Disability Employment Network):
Contact Person:
Contact Phone:
Number of Australian Job Seekers placed with the Company by Job Network etc:
Other Information on consultations with Job Network Member etc:
DETAILS OF PARTICIPATION IN DEWR LABOUR MARKET PROGRAMMES, INDUSTRY
STRATEGY BRANCH INITIATIVES, AND/OR STATE/TERRITORY GOVERNMENT LABOUR
MARKET PROGRAMMES
Please include information on the number of job seekers placed etc.
TITLE OF INDUSTRIAL INSTRUMENT (OR OTHER WORKPLACE AGREEMENT) TO
WHICH THE COMPANY IS A PARTY – IF APPROPRIATE
COMPANY DECLARATION
I declare the information provided in this Schedule is correct and that, on request, I will provide
DEWR with appropriate supporting evidence (including financial statements, invoices, copies of
Australian Apprenticeship registration papers, Job Network vacancy lodgements etc).
I agree that DEWR can consult with other Commonwealth and State/Territory agencies to confirm
the accuracy of the information provided in this Schedule.
I confirm that the Company identified on this Schedule has not and will not, for operational reasons,
displace any Australian employed as a Skilled Worker in order to replace them with Overseas
Temporary Workers or effect a reduction in the terms and conditions of employment of Australian
workers as a result of employing Overseas Temporary Workers.
Signed by--------------------------------------
On behalf of the Company
Dated-------------------------------------------
SCHEDULE D
First year of the Term of Operation
Number of Nominations: [xxx] of Skilled Overseas Workers
Attachment B
On-Hire Industry Labour Agreement – Employer Checklist
Read the preceding letter and supporting information on the new labour agreement arrangements for the on-hire industry at the following weblink: See: http://www.immi.gov.au/skilled/on-hire-industry.htm
Compile all relevant documentation to satisfy requirements for Schedule B of the on-hire labour agreement (Attachment A)
Compile all relevant documentation to satisfy requirements for Clause 6.1 of the on-hire labour agreement (Attachment A) Some advice to assist in the provision of this information, please note that this information is given as a guide and without prejudice. The information you provide should not be limited to the advice provided: • Provide details and supporting documentation of efforts to recruit and retain skilled
Australian workers; • Provide a statement stating compliance or details of non-compliance with
Commonwealth and State workplace relations; • Provide a plan detailing the method for reducing reliance on temporary skilled
overseas workers and increasing training and employment of Australians; • Provide details and supporting documentation of annual turnover for the most recent
full financial year.
Complete Schedule C “Assessment of Training Record” of the on-hire labour agreement (Attachment A)
Electronic submissions for consideration should be sent to: [email protected] Or provide two complete sets of your hard copy submission to: The Director Labour Agreement Section Department of Immigration and Citizenship PO Box 25 Belconnen ACT 2616 Note: DIAC will forward to DEWR, on your behalf, either an electronic copy or 1 complete hard copy of your submission.
If the Commonwealth agrees to the request to access and is satisfied with the responses to Schedule B and Clause 6, the on-hire firm will be invited to sign an on-hire industry labour agreement.
DIAC will acknowledge your submission by return email or return letter as appropriate. Note: You may be asked to provide further supplementary information to support your submission if an assessment is made that the provided information is not sufficient to allow access to the on-hire industry labour agreement.
Weblinks Technical details of the regulatory changes affecting the on-hire industry are available on the Department’s website. See: http://www.immi.gov.au/legislation/amendments/lc01102007-3.htm The website also contains other information about the labour agreement process. See: http://www.immi.gov.au/skilled/skilled-workers/la/index.htm Arrangements for current Subclass 457 visa holders Persons who are employed by on-hire firms and who hold a current Temporary Business (Long Stay) Subclass 457 visa are not affected by these changes. These employees may remain on their current visas and the conditions of these visas remain in force until the visas ceases. Transitional arrangements Sponsorship applications, nominations and visa applications lodged prior to 1 October 2007 will not be affected by the new arrangements. These applications will continue to be processed in accordance with the Standard Business Sponsorship programme arrangements. Visa applications lodged on or after 1 October 2007 in relation a nomination that had been lodged prior to 1 October 2007 will also continue to be processed and considered against an approved nomination. Sponsorship, nomination and associated visa applications lodged on or after 1 October 2007 will be decided in accordance with the new provisions in relation to the on-hire industry. Arrangements for new nominations and associated visa applications The new provisions in relation to the on-hire industry will apply to all nominations lodged on or after 1 October 2007. Standard Business Sponsorship arrangements would only be considered if the they relate to a position to be filled within the on-hire firm’s own organisation (eg an accountant to audit their own books). Affected Subclass 457 visa holders who seek a further visa onshore and are associated with an On-Hire firm that is currently a Standard Business Sponsor can lodge a further Subclass 457 visa application by completing the paper Form 1066 – Application for Temporary Business (Long Stay) visa (Subclass 457). Such applicants will normally be granted a bridging visa which will enable them to remain lawfully in Australia while the On-Hire firm seeks access to a labour agreement. The On-Hire firm would need to request access, be invited to sign and enter into a labour agreement before the further visa can be granted.