Exacerbated by the Covid-19 Pandemic, it is understandable that many businesses are experiencing difficulty in sourcing suitable Australian or local employees to fill roles.
As an employer, you may already be aware of the differing considerations when trying to sponsor foreign nationals under an employer-sponsored visa, one being that you must nominate a position on the skilled occupation list.
In the event where an employee may not be eligible for an occupation listed on the skilled occupation list, Labour Agreements provide opportunities for businesses to employ overseas workers to fill skill shortages commonly faced in today’s climate of uncertainty and changes in the immigration landscape.
Labour agreements exist as a unique solution to bridge the gap between the business’ specific needs and organisational objectives with the visa programs available. A Labour Agreement is a special contractual arrangement negotiated between the employer and the Department of Home Affairs when no standard visa pathway is suitable or available. Concessions may or may not be available depending on the particular labour agreement.
Typically valid for 5 years, the agreement will enable the business to sponsor skilled foreign workers in an approved occupation and for a specified period of time. The business must be able to demonstrate that there is both a genuine labour market need for a foreign skilled worker to fill a position within Australia, and the standard pathway is not available. The agreement is intended to address the skills needs and shortages of the employer, with an integral component being the prioritisation of Australian workers and a plan to reduce reliance on overseas workers in the future. Businesses are able to nominate employees under the following common visa programs:
- Subclass 482 – Temporary Skill Shortage visa
- Subclass 186 – Employer Nomination Scheme visa
- Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa
Company Specific Labour Agreement
A company specific labour agreement is directly developed with an employer and will be considered only where a genuine skills or labour shortage for an occupation exists. The shortage must not already be provided for in an industry, project or designated area migration agreement. Terms and conditions of the agreement will be determined and considered on a case-by-case basis.
Industry Specific Labour Agreement
Templated labour agreement arrangements are in place for certain industries and provide fixed terms and conditions. Industry specific labour agreements currently exist for the following industries:
- Fishing
- Meat
- Minister of Religion
- On-hire
- Pork
- Restaurant (fine dining)
- Dairy
- Advertising
- Horticulture
Industry labour agreements are typically considered where several businesses industry-wide have approached the Department of Home Affairs with evidence of ongoing labour shortages and after extensive consultation. Businesses must meet industry-specific requirements of the agreement and concessions are not available.
A Designated Area Migration Agreement (DAMA)
A Designated Area Migration Agreement (DAMA) is a formal agreement between the Australian Government and a relevant authority such as region, state or territory. A DAMA is suitable if the business is located in a regional area, requiring a specific skill or occupation to be filled.
DAMA’s operate under an two-tiered agreement based framework, the first of which being a head agreement in effect for 5 years and developed in consultation with the Designated Area Representative (DAR). The second of which allowing employers to develop individual labour agreements with employers under the same overarching terms and concessions of the head agreement for that region, also generally in effect for 5 years.
If concessions are requested, businesses are required to request endorsement from the relevant state/territory and put forth a business needs case. Concessions available vary according to each regional DAMA including: age; language; skill; salary; and experience requirements for the occupation.
There are currently 12 DAMAs in place Australia-wide, covering regions such as Far North Queensland, Great South Coast, Pilbara, Townsville and East Kimberley region.
Project Agreements
Similarly, a project agreement is a two-tiered agreement requiring negotiation of a head with the Department of Home Affairs, subsequent to negotiating an industry labour agreement. Project agreements enable businesses with large infrastructure, resource or construction projects to forecast a genuine labor or skills shortage for a particular project or phase of a project.
Key takeaways
The Job and Skills Summit 2022 highlighted the intention to utilise labour agreements and widen the scope of the current agreements available, with reviews of current agreements regularly taking place.
There are varying requirements dependent on the type of labour agreement you are seeking. A DAMA may be more attractive for smaller businesses requiring an immediate solution to fill skills shortages, or an agreement may exist for your industry, as extensive industry consultation is underway post-Covid-19 recovery.
For example, temporary company specific labour agreement arrangements are now available to support the hotel and accommodation industry, offering a pathway to permanent residency to individuals who were previously not able to access permanent residency via an employer-sponsored pathway. Such agreement acts as an incentive to retain skilled employees per workforce needs.
Hairdressing has been flagged as an industry under consideration for developing an Industry Specific Agreement. Further information will be provided as developments are announced.
Selecting a Labour Agreement as an alternative pathway to skilled visas requires thorough assessment of your business’ requirements and eligibility to secure a positive outcome without delays. You should consult a legal professional prior in order to determine the labour agreement best suited to meet your business’ needs.
If you require further information in relation to the process or specifications in relation Labour Agreements, please do not hesitate to contact ross@crystalmigration.net
There may indeed be a Labour Agreement applicable and worthwhile for your business to explore.