Our right to jobs negotiated away

Unbeknown to most of those commenting on the numbers of 457 visas outside the EMA (Enterprise Migration Agreement) issue, as part of Doha round of trade negotiations, the Labor Government processed and negotiated away Australia’s rights to apply labour-market testing to temporary overseas workers in the 457 visa program.
Some Free Trade Agreements (FTAs) also commit Australia to temporary entry without limits and without labour market testing, for certain categories as intra-corporate transferees (executives, managers and specialists, independent executives and “contractual service sellers”).

Immigration Overshoot: Bob Birrell, Ernest Healy Centre for Population and Urban Research, Feb 2012

The permanent migration program for 2012-13 has been set at the record high figure of 210,000. The Government’s 457 temporary-entry visa program is also running at record high levels. Opportunities for other
temporaries, including visitors, students and Working Holiday Makers (WHMs) most of whom have work rights in Australia, have also been opened up.

Employer-sponsored visa subclass are 457 visa holders already employed by the sponsor. These migrants do not have to possess professional-level
English proficiency or to undergo an assessment of their credentials by the relevant Australian occupational authority.

Unbeknown to most of those commenting on the numbers of 457 visas outside the EMA (Enterprise Migration Agreement) issue, as part of Doha round of trade negotiations, the Labor Government processed and negotiated away Australia’s rights to apply labour-market testing to temporary overseas workers in the 457 visa program.

Employer sponsorship is increasingly being used as a backdoor entry method, which allows some employers to get a competitive advantage and some migrants to evade the much tougher entry rules applied to points-tested migrants.

This is also why the temporary-entry 457 visa program continues to expand despite the recent slow-down in employment creation.

CFMEU Construction, Forestry, Mining & Energy Union of Australia February 2010 Australia's international trade commitments and the 457 visas

The CFMEU and other unions have raised serious concerns about the inclusion of immigration matters in trade agreements at all, the specific terms of offers made in relation to temporary work visas in the Doha Round and FTAs, and the use of work visa concessions as bargaining chips in trade negotiations. Jobs in Australia should not be bargained so freely to our detriment!

This is a significant downgrading of the rights of Australian workers to jobs within Australia, ahead of foreign nationals, and is proceeding with little or no public debate. It is also a significant erosion of national sovereignty over immigration policy, which makes even less sense when Australian governments are giving higher priority to developing sustainable population policies.

CFMEU RESPONSE TO PRODUCTIVITY DRAFT RESEARCH REPORT ‘BILATERAL AND REGIONAL TRADE AGREEMENTS JULY 2010’

Most Australians would be surprised to learn that the Rudd Labor Government asserts that on account of Australia’s “international trading position and legal obligations”, it is not able to require employers:

• to give preference to hiring Australians (citizens and permanent residents) over temporary foreign workers in the 457 visa program, through formal “labour market testing” or LMT.

• to give preference to retaining Australian workers over 457 visa workers in redundancy situations.

The Minister for Immigration and Citizenship set out this position in writing to the CFMEU, in a letter dated 10 September 2009. This said in part:
While the Government continues to promote and encourage the culture of employing Australian workers, we cannot create legal obstacles for overseas workers or introduce preferential treatment for Australian workers without compromising our international trading position and legal obligations.

In addition, the Rudd Labor Government asserted that Australia’s international trade commitments also limit its ability to change the 457 visa program in several other areas, so that:
• Australia is constrained in the extent to which it can change the gazetted list of occupations for which 457 visas may be granted.

• Australia cannot impose a cap or numerical limit on the number of 457 visa grants in a particular year, in total or in specific sectors or occupations.

The Rudd Labor Government asserted that on account of Australia’s “international trading position and legal obligations”, it is not able to require employers:

• to give preference to hiring Australians (citizens and permanent residents) over temporary foreign workers in the 457 visa program, through formal “labour market testing” or LMT.
• to give preference to retaining Australian workers over 457 visa workers in redundancy situations.

Australia cannot impose a cap or numerical limit on the number of 457 visa grants in a particular year, in total or in specific sectors or occupations.

The Rudd Government on Australia’s international trade commitments and the 457 visa was made on 10 September 2009 on 457 visas:
Any changes to the 457 visa must be consistent with Australia’s international trade commitments under the WTO General Agreement on Trade in Services (WTO GATS) and Free Trade Agreements (FTAs); and Australia “should also be cautious about measures that could limit our capacities in future negotiations”.

Australia has made certain commitments, under the WTO GATS, to allow the entry and temporary stay of some persons without labour market testing (executives, senior managers, independent executives and service sellers).

Some Free Trade Agreements (FTAs) also commit Australia to temporary entry without limits and without labour market testing, for certain categories as intra-corporate transferees (executives, managers and specialists, independent executives and “contractual service sellers”).

For example, the Thailand Australia Free Trade Agreement (TAFTA), which has special concessions for Thai chefs to treat nationals of other countries as Australian nationals, through provisions known as” National treatment” and “Market access”.

Australia made a non-binding offer in the Doha trade Round in 2005 under the Howard government, which is still current. This included the offer to remove LMT for specialists in all 457 situations, not just intra-company transfers, in all occupations on the gazetted list of occupations eligible for 457 visas, including ASCO 4 trades occupations.

Australia could change its 2005 Doha offer at any time – it could therefore withdraw the offer to remove LMT for “specialists” in the 457 program.

Ross Garnaut in his 1989 landmark report:
There will continue to be pressure from China and the Republic of Korea for Australia to accept temporary entry for labourers and skilled workers on, for example, joint venture developments.
Australia’s approach has been to welcome migrants on a non?discriminatory basis but to refuse entry to guest workers unless they possess an important skill that is not available in Australia. This approach has deep roots in Australian labour and immigration policy. In a country receiving migrants from diverse sources, it is important to the maintenance of national coherence and identity. It is defensible in principle and should be maintained.
( Ross Garnaut, Australia and the Northeast Asian Ascendancy, 1989, pp293?4.)

Trade negotiations should be undertaken through open, democratic and transparent processes that allow effective Parliamentary and public consultation to take place about whether negotiations should proceed and the content of negotiations.

Trade agreements should not undermine human rights, labour rights and environmental protection, based on United Nations and International Labour Organisation instruments.

ACTU

Unions believe that all workers in Australia, no matter where they’re from, should have equal rights to decent pay and conditions and to be treated fairly at work.

According to the ACTU, while the inflow of temporary overseas workers increased rapidly under the former Howard Government as the economy grew, the GFC saw a  drop in numbers. However, this trend has since reversed and there  continues to be a steady movement of temporary overseas workers to Australia.  

The explosion in the number of 457 visas that started in the early 2000s, along with a shift in source countries and increased employer demand for workers with lower levels of skills,  placed enormous pressure on what was already a deeply flawed temporary migration scheme.

Workers on 457 visas have been underpaid, abused and subjected to sub-standard conditions of work. Most cases of abuse have tended to involve trades level 457 visa holders with little or no English language skills who often lacked the technical skills they are supposed to have to be eligible for a 457 visa.

It has also been used by the Australian Government during its negotiations with Pacific countries over a regional free trade agreement.

In December 2011, the Government announced that the pilot will become an ongoing seasonal worker  program commencing on 1 July 2012. Seasonal workers who are citizens of East Timor, Kiribati, Nauru, Papua New guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu will be able to participate with 10,450 places available for the horticultural industry.

The 457 program is an important part of how Australia meets a number of our international trade obligations. These obligations mean we can't limit access to our economy of people who wish to do business with us. Part of doing business with us often involves sourcing skilled labour from other countries. Australia must remain open for business people and service providers and the reforms to the 457 program will not adversely impact these obligations.

Immigration continue to release information about upcoming 457 visa changes, adding details to the Minister’s announcement late last week. They will come into effect the 1st of July.

It looks like labour market testing will not be re-introduced, as it may breach some of Australia’s international trade agreements.

Why is the government not reintroducing Labour Market Testing?

The 457 program is an important part of how Australia meets a number of our international trade obligations. These obligations mean we can't limit access to our economy of people who wish to do business with us. Part of doing business with us often involves sourcing skilled labour from other countries. Australia must remain open for business people and service providers and the reforms to the 457 program will not adversely impact these obligations.

"Labour market testing would constitute a restrictive practice in the context of [some of Australia's] international trade agreements."

Doing "business with Australia" means negotiating away the right to jobs produced by our economy. They can't be guaranteed for Australians.

Update from DIAC on 457 changes