When a truck driver is not a truck driver

In today’s edition of The Age, titled ‘Audit reveals fresh 457 visa concerns’, the reporters summarise the latest Fair Work Ombudsman’s audit of 457 visa workers. They state that about 20 percent of employers are not paying appropriate wages or providing proper jobs. It would be interesting to know the sizes of the businesses being audited to understand the true statistical significance of the findings.

On a more important note (aside from employees being underpaid wages of course) were the examples given of 457 workers in roles that were not consistent with their nomination: an electronics engineering technician working as a cleaner, and a truck driver that the Fair Work Ombudsman had no initial concerns about. The reason this is alarming is that a 457 nomination with a Standard Business Sponsor must identify an occupation according to a six-digit ANZSCO code (this is a huge list created by the Australian Bureau of Statistics), and that this occupations is an approved occupation specified by the Minister (current list can be found here). Most occupations listed are considered highly skilled of which cleaner and truck driver are not.

What these two examples highlight is the problem of correctly defining the occupations nominated. Without further information, it is hard to know the reasoning behind why a truck driver is considered to not be in breach of their visa condition (condition 8107) that requires them to be undertaking the correct occupation if they are the primary sponsored worker. The business sponsor may also be in breach if they have not notified Immigration that the worker changed their work duties or ensured that the worker participates in the nominated occupation. There are, however, two exceptions that come to mind:

1. The employee was sponsored as a truck driver under a labour agreement. Labour agreements are individual agreements made between the Commonwealth government and employers and can allow occupations not on the approved list.
2. Driving a truck is not the only job duty the worker does. The way the assessment of work duties is made is that it is compared to the ANZSCO classification and whether a significant majority of the tasks are contained in that classification.

In our truck driver example, the employee may be driving a truck, however, they may also be driving a truck full of plumbing materials to a work site and the activity of driving the truck is only a minor portion of their occupation as a plumber.

Another example may be that an accountant may answer phone calls made to his employer's business, and this may be a minor part of their role, however, this does not make them a personal assistant to their boss.

Obviously though, there are important repercussions, and sanctions in place, if workers are nominated in positions that are not accurate or that they have switched roles without the required notifications and further applications.