Recent updates to the Migration Act have introduced new rules for engaging migrant workers, including greater flexibility for sponsored migrants who wish to leave their employer.

Last month, the government announced some significant updates to Australia’s migration policies, which are set to impact temporary visa holders, skilled migrants and business sponsors.

The changes included updates to student and working holiday visas, the introduction of a Workplace Justice Visa and provisions to reduce the number of “permanent temporary” migrants in Australia.

These changes form part of the Albanese government’s 10-year roadmap for migration reform, which aims to address Australia’s “broken” migration system and ensure it works in the best interests of both migrants and employers.

The changes, most of which took effect on 1 July 2024, apply to existing visa holders as well as those granted a visa after this date.

5 key migration changes HR should be across

Many of the changes introduced by the new reform aim to give skilled visa holders more flexibility in their employment, says Ben Watt, lawyer and registered migration agent at VisaEnvoy.

“The employee now has a bit more leverage to leave the employment situation and leave it on their own terms,” he says. 

The government also hopes the reform will reduce the amount of “permanent temporary” migrants who struggle to find pathways to permanent residency, he adds. 

Some of the key changes that have been introduced to achieve these objectives are as follows:  

1. The removal of the “golden handcuffs” binding skilled migrants to their employers

Changes to visa conditions for the Temporary Skill Shortage (subclass 482), Temporary Work (Skilled) (subclass 457) and Skilled Employer Sponsored Regional (subclass 494) visas have given migrant workers holding these visas more flexibility if they leave their sponsoring employer. 

“The change to visa condition 8607, which is the visa condition that’s on [Temporary Skill Shortage] visas, is far and away the biggest change… There’s an enormous number of people in Australia on this visa,” says Watt.

“[Prior to these changes], if you were on [one of these visas] and you left your employer, you had 60 days to find somebody else to sponsor you, and within that time period, you couldn’t work. And so a lot of people felt very much stuck with their employer.”

This unspoken tie to the business sponsor has been nicknamed the “golden handcuffs”, since employees under these conditions are unlikely to leave their employer even if they are unhappy or mistreated at work. 

The new conditions aim to reduce the chance of this dynamic arising. Under the new laws, migrants holding these visas are given up to 180 days after leaving a job (with a maximum of 365 days across their visa period) to find a new sponsor, apply for another visa or prepare to leave Australia. 

“They can [also] work during that time period, and they don’t need to find another sponsor per se – they can work in any occupation they choose.”

“The employee now has a bit more leverage to leave the employment situation and leave it on their own terms.” – Ben Watt, lawyer and Registered Migration Agent, VisaEnvoy

2. Restrictions on ‘visa hopping’

‘Visa hopping’ refers to the practice of temporary visa holders applying for additional temporary visas to extend their stay in Australia without a clear pathway to permanent residency. 

To help address this, the new rules will prevent Visitor (subclass 600) and Temporary Graduate (subclass 485) visa holders from applying for Student (subclass 500) visas while still in Australia. 

“They’ve really limited the amount of people on student visas who are coming in, and made it a lot harder to get a student visa… And, [at the same time], they’re making the TSS visa a bit easier,” says Watt.

“What [the government] is trying to do is have fewer people on graduate visas, and more people on employer-sponsored visas. That’s how they’re trying to rejig the system to have less permanent temporariness.”

3. Migrant income threshold increase 

As part of the new requirements, the Temporary Skilled Migration Income Threshold (TSMIT) has increased from $70,000 to $73,150. 

This threshold determines the minimum salary that employers must pay the skilled workers they sponsor. This boost aims to ensure skilled migrants are fairly compensated and set a standard that aligns with wage growth and living costs.

4. The introduction of the Workplace Justice Visa

As of 24 July 2024, a new Workplace Justice Visa (subclass 408) has been introduced for migrant workers to remain in Australia for up to 12 months to fight an active workplace claim, if they don’t have any other legal avenue to stay in the country.

Watt does not anticipate that there will be a huge uptake of this new visa. 

“It would apply in a very limited number of scenarios, because there are very limited circumstances where somebody doesn’t have a capacity to get any other visa,” he says. 

However, the visa is still an important step in helping migrant workers in these limited circumstances fight back against exploitation. 

5. Changes to eligibility for Working Holiday/Work and Holiday Visas 

Updates have been made to Australia’s popular Working Holiday/Work and Holiday visa programs, which allow young people (generally 18-30 years old) to have an extended holiday in Australia and work here temporarily for one year, with extensions available to some visa holders.

UK citizens can now apply for a Working Holiday Visa (subclass 417) until the age of 35 (up from 30 previously), and are no longer required to complete ‘specified work’ such as farm work or construction in regional areas to be eligible for a second or third year visa. 

Additionally, citizens from the Philippines aged 18-30 have become eligible to apply for a Work and Holiday Visa (subclass 462), allowing them to spend up to a year in Australia engaging in short-term work, study and/or travel.

“There’s so much focus on the negative that we forget the positive – and there are so many positive, mutual, collaborative [employment] relationships that form.” – Ben Watt, lawyer and Registered Migration Agent at VisaEnvoy

How will these changes impact employers?

The new rules for migration employment offer both opportunities and challenges for employers, says Watt.

One concern raised about the changes is that the new flexibility for skilled migrants could lead to situations where employees take advantage of the system by securing sponsorship and then leaving shortly afterwards. 

“Hypothetically, according to the new system, you can spend $10,000 nominating this employee, give them a big advance on their wages to pay for things or even spot their [visa] fees, and then the employee can just leave the day after the visa is granted and work for whoever they want to work for,” he says. 

Employers can potentially mitigate the risk of this happening by including clauses in employment contracts that allow them to recoup certain costs if an employee leaves within a specified period, he says. 

However, it’s important for employers to tread carefully, as overly restrictive conditions might end up pushing employees away.

“You don’t want to begin your sponsor-sponsee relationship by creating a whole lot of punishments for them if they don’t do what you say,” says Watt.

Ultimately, employers’ best line of defence will likely be a healthy organisational culture and a strong retention strategy to incentivise sponsored workers to stay put.

While there is room for misuse of the system, Watt says many employers will benefit greatly from more skilled migrants being able to access permanent residency, allowing them to remain in Australia and continue contributing to the business.

“When [migrants] get their permanent visa, they don’t necessarily need to stay with the sponsor, but I see it happen all the time that they do… There’s so much focus on the negative that we forget the positive – and there are so many positive, mutual, collaborative [employment] relationships that form.”

What’s more, the removal of the “golden handcuffs” will also mitigate the tension or resentment that can brew when a migrant worker wishes to leave an organisation but feels powerless to do so. 

It will also alleviate the pressure on employers potentially engaging in cuts or redundancies, who can now do so knowing that the loss of employment will not ruin a migrant worker’s chances of gaining permanent residency. 

This is all the more reason for HR to seize the opportunities that migrant employment can offer, says Watt. 

“A lot of HR departments are intimidated by the process… But it’s not a scary thing to sponsor people. I think more employers should really consider it,” he says. 

“It’s a great addition to your business, and it’s really cool having people come over from other countries, work with you and bring their ideas to the table.”

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.

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