Global Workforce Increasing Compliance Demands on HR
17-Oct-2011As organisations increase their use of overseas workers, HR professionals need to ensure they are across complex legal issues, says immigration expert Teresa Liu.
"The landscape of employment is quite different, from an overseas worker perspective, from what it used to be," she told HR Daily.
About 15 years ago "there was not a lot of movement globally", or it was limited to CEO and executive-level workers. In more recent years there has been a move towards a "true global workforce", with a range of skilled occupations - engineers, accountants, nurses, and so on - actively encouraged to fill local skills gaps via the 457-visa scheme.
It is now quite common for a business to require a number of workers - engineers, for example - to work in Australia for a six-month period, in a certain phase of a project, Liu says.
This poses challenges for HR professionals, who must ensure they are aware of where these workers are at any point in time.
Where they can run into difficulties is when a project manager, for instance, decides to send an overseas worker from one project to another global location, without letting HR or the organisation's mobility manager know.
"This may be seen as a breach from an immigration point of view - even if inadvertent - because that person may be seen as effectively ceasing employment in Australia."
Liu, who is a partner at immigration law firm Fragomen, says one obligation under immigration law is that you need to notify the Department of Immigration of a cessation of employment in Australia within 10 working days of the person departing the country.
From a compliance point of view, she says, this means HR managers "need to have a really good understanding of what each worker's long-term plans are, on projects around the world, and back in Australia, because in some instances it may mean there is a need to notify immigration and cancel their visa".
"In other circumstances there may be provisions to keep the visa alive, where there is a clear indication that person will be coming back into the same role and the same location, doing the same tasks, within a reasonable timeframe.
"It's a basic thing, but for large organisations it can be quite difficult to track people's movements, and under Australia's immigration law there is an assumption that there is that awareness and there is that tracking going on."
Workers must be treated equally
Liu says that since the Federal Government's 2009 changes to improve the integrity of the 457-visa scheme, "the key compliance issues revolve around ensuring the employee will be treated in the same manner, effectively, as they would treat an Australian employee".
This includes paying overseas workers at the same market rate or above (as someone performing the same role in the same location), and ensuring they have at least equivalent terms of employment.
It is important for HR professionals to bear in mind that "that is an ongoing obligation", Liu says. "So as they review their Australian workforce and their Australian workers' terms and conditions, they have an obligation to do the same for overseas workers as well."
According to Liu's colleague Chris Barton, an employment law partner at Fragomen, equal treatment of overseas workers extends to obligations under employment and workplace safety laws, a fact of which some organisations appear to be unaware.
"There are examples of employers using temporary overseas labour with the assumption perhaps that general employment laws and OHS laws don't apply with the same rigour to overseas employees," he says.
But workers on 457 visas have successfully brought unfair dismissal claims or general protections claims under the Fair Work Act, "and they've been able to do that successfully because they've been treated in a way that is different to how local workers would be treated".
He says employers need to be aware that from the perspective of employees, employment and OHS laws that apply here might "seem familiar, but in various subtle ways they operate differently".
"This can create difficulties. They might just be communication problems but in practice they can result in unlawful or adverse action being taken against employees."
Compliance with employment and OHS laws, not just immigration laws, has become a critical component of the 457-visa scheme, he points out, and "an employer looking to access overseas labour through the various temporary skilled migration programs may find themselves excluded if they have a poor compliance record in relation to those matters".
Breaches
Any breach of immigration requirements can potentially have a significant impact on an organisation, Liu says.
The Department of Immigration can sanction a company for a set period of time, prohibiting them from using the overseas skilled worker program, or in less serious cases the organisation can be formally warned, or be the subject of an infringement notice.
Immigration and other breaches can affect the future sponsorship of skilled workers, Liu says, so it is vital to understand how the laws interact.
In most cases to date, she says, breaches have involved late notification (when a worker has departed the country), and inadvertent under-payment of workers against the amount proposed on their approved nomination.
"Sanctions do occur but in cases where it can be shown that there's a reputation [for compliance] and a process now in place for resolving that particular issue, it normally results in a warning."
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