457/TSS visas: The 2019 massage and beauty therapy sponsor blitz; caveats; and the world’s oldest profession

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The requirement for the Minister for Immigration to publish a list of all sanctioned business sponsors that came into effect on 13 December 2018 has turned up some interesting results. Analysis of the register up to the end of 2018 was previously provided, with a conclusion that the hospitality industry was, by and large, overrepresented.

Despite this, it appears that the Department of Home Affairs (Home Affairs) have concentrated their sponsor monitoring efforts on beauty and massage businesses given recent additions to the sponsor sanctions list. Of the 73 total sponsors sanctioned in 2019, around 51 of them belonged to health and beauty businesses from assessing the listed legal and business names. This represents 70 per cent of sanctioned sponsors this year.

What is the purpose of business sponsor monitoring?

Sponsor monitoring is an important aspect to Australia’s migration framework. In safeguarding the integrity of the migration program, Home Affairs lists the following four factors sponsor monitoring attempts to ensure:

  • Working conditions of sponsored people meet Australian standards;

  • Sponsored people are not exploited by their sponsors;

  • Visa programs are used for their intended purpose; and

  • Obligations and requirements all sponsors must meet are standardised.

Over the years, egregious breaches of sponsor obligations and workplace laws relating to overseas workers have been widely reported in the media, hence regulations made to name and shame sanctioned sponsors.

What is an obvious secret is how Home Affairs determines which approved sponsors they monitor. With finite resources, Home Affairs most likely uses a risk-tiering and targeted approach whether that is by geography or industry or both, along with information provided through channels such as public dob-in lines and referrals from Fair Work inspectors.

It is clear massage and beauty therapist businesses have copped the brunt of Home Affairs’ ire in 2019. While this may be the case, we simply do not know how many businesses in these industries were monitored during this period and how many were compliant with their sponsor obligations. Certainly, though, the caveat for the occupation of 411611 Massage Therapist means many of the sanctioned businesses would not be able to sponsor any overseas national for a Subclass 482 – Temporary Skill Shortage visa if they attempted to nominate again, not to mention that the occupation of 142114 Hair or Beauty Salon Manager was removed back in January 2018.

The caveat attached to 411611 Massage Therapist requires any nominated position to be:

  • full‑time,

  • based in a therapeutic setting,

  • involve the provision of medical relaxation massage, and

  • in a non-retail setting.

Therefore, nominations where positions are based in a spa or shopping centre or in a non-therapeutic setting, such as not in a clinic where services are delivered by health care professionals, should be refused.

What we can rule out with confidence is that the temporary work visa program, under the old Subclass 457 – Temporary Work (Skilled) visa and the 482/TSS visa, has not been abused to sponsor sex workers, which is listed in the ANZSCO under 451813 Sex Worker or Escort. A recent Freedom of Information request on this has shown no illegal workers located in the sex industry held 457 visas.

What are caveats?

Caveats, referred to as applicable circumstances in the relevant occupation lists, refer to specific exclusions that apply to nominated occupations. They can be quite detailed, such as with massage therapists above, and can cover many aspects including salary, location, business size and turnover.

It is quite possible Home Affairs decided to investigate massage therapists that were approved when this caveat was in place to confirm whether the claims met when nominating their sponsored worker, still existed.