Aged care industry labour agreement

The Minister for Immigration, Citizenship and Multicultural Affairs announced today that an industry labour agreement is now available to sponsor care workers for subclass 482 – Temporary Skill Shortage visas. This can lead to a permanent subclass 186 – Employer Nomination Scheme visa after at least two years of full-time work experience in Australia in a relevant direct care occupation. The two years of work experience required is not tied to any particular employer or visa subclass.

Aged care workers are deemed in shortage in Australia with strong future demand, according to the latest National Skills Commission report. This is expected when Australia, as with many countries around the world, are grappling with a rapidly ageing population.

The Home Affairs website states that this labour agreement will allow suitable businesses to sponsor the following occupations:

• 423312 Nursing Support Worker

• 423313 Personal Care Assistant, and

• 423111 Aged or Disabled Carer

Prior to this announcement, aged care providers needed to apply for a company-specific labour agreement.

Labour agreements are work agreements between organisations and the Department of Home Affairs to sponsor workers outside of the standard business sponsor regime. They can also include sponsoring workers on a subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa where appropriate. The major difference between industry labour agreements and company-specific labour agreements is that industry labour agreements are templated labour agreements that do not allow variations.

The Aged Care Industry Labour Agreement joins other labour agreements, namely: advertising, fishing, meat, minister of religion, on-hire, pork, premium dining restaurant, and horticultural industry labour agreements.

What is special about this agreement is that a Memorandum of Understanding (MoU) must be entered into with a relevant union to be approved. The media release refers to the need to negotiate directly with the union and will give the ability of workers “to speak to their union shortly after commencing, should they wish to do so.”

This necessity to negotiate with a third party, or perhaps even if a union may be a party to a labour agreement along the organisation and the Department of Home Affairs, may pose a legal issue as only the Commonwealth and a person (the employer) can be parties to a labour agreement pursuant to regulation 2.76 of the Migration Regulations 1994 (Cth).

Other labour agreements, in particular company-specific labour agreements, require consultation with a union but ultimately the Minister is the one who decides to enter the agreement.

Another interesting aspect of the agreement is the ability to pay an annual salary of at least $51,222 if the Australian Market Salary Rate (AMSR), is not higher. This is obviously less than the current Temporary Skilled Migration Income Threshold (TSMIT) of $53,900 and well below the $70,000 the TSMIT will be from 1 July 2023. This proves just how debilitating the TSMIT is with occupations that are deemed critical, but where the market salary rate, which is usually the relevant award is less than the TSMIT. It also alludes to the fact that even if these occupations could be sponsored under the standard business sponsor regime, it would be prohibitive to do so based on a typical salary.

Employers operating in this industry will have little choice but to accept the terms if the alternative is significant staff shortages and a crippling of their operations.

Australia-UK Free Trade Agreement expected to be in effect on 31 May 2023

With the announcement by the prime minister today that the Australia-UK Free Trade Agreement (A-UKFTA) will likely be in effect from 31 May 2023, benefits will not only include the trade of goods but also people.

This will include new arrangements for UK passport holders applying for subclass 417 – Working Holiday (WHM) visas and specifically increasing the age eligibility from a maximum of 30 to 35 years and removing the need for UK passport holders to undertake specified work to be eligible for a second or third WHM visa.

As WHMs must still apply for their second and third WHM visas, UK passport holders can span their WHM visas as far as they want if they continue to be under the age cap, among other things. The Home Affairs website has useful examples.

WHM conditions including visa condition 8547, which does not allow a visa holder to be employed by any one employer for more than 6 months without the prior permission and which will be enforced from 1 July 2023 will remain. The other mandatory condition is visa condition 8548 which does not allow the holder to engage in any studies or training in Australia for more than 4 months.

Australians will receive similar reciprocal benefits.