Union pushes for legislation allowing employees to appeal 457 visa decisions made by businesses

Unions are pushing for new legislation to give Australian workers a right of appeal against an employer who hires a worker on a 457 visa, should this mean an Australian worker misses out or is fired.

The push comes as part of the Construction, Forestry, Mining and Energy Union’s submission to the Senate inquiry into the operation of 457 visas.

The move also comes alongside the government’s crackdown on 457 visas in the federal budget, with more money awarded to the Fair Work Ombudsman to crackdown on misuse.

The union is also calling for laws to be enacted which require advertising the job positions nationally and providing information to the government in regard to the number of applications received from Australian workers, and the reasons these applicants weren’t suitable for any position.

The CFMEU also wishes for all unsuccessful job applicants to be notified as to why they were not qualified to fill the role.

“The last requirement – notifying all unsuccessful Australian applicants – is essential for an effective LMT [labour market testing] system. Without this requirement, unsuccessful Australian applicants will be unaware that they have missed out on the job and the reasons why,” the submission says.

Based on a 2009 study by KPMG, which found 75% of employers surveyed would retrench an Australian worker before their 457 visa-workers, the CFMEU says Australian workers should be able to appeal redundancy decisions.

“In redundancy situations when there are both suitably qualified Australian workers available to do the work as well as 457 visa-holders in the same classifications, employers should have a 457 sponsor obligation to give preference to retaining the Australian workers and the 457 visa-holders should go first,” the submission says.

The CFMEU submission also states the union wants a new 457 visa condition to be included which says the visa-holder has secondary rights relative to Australian resident workers in redundancy situations.

Executive director of the Council of Small Businesses of Australia Peter Strong told SmartCompany should this be enacted, it would inhibit small businesses.

“This is not good for small business or the economy. They may not even be aware what they’re doing because they live in a different world, but it would make it impossible for a small business to hire a 457 visa-worker.”

“Obviously the CFMEU is a big union and they deal with big business, but what they’re effectively saying is they don’t want small businesses to have a 457 visa-worker in their workplace. It’s bad on a macro- and a micro-level, and it makes change management more difficult,” he says.

Strong’s criticisms join those of the Australian Mines and Metals Association chief executive Steve Knott, who was quoted in The Australian as saying the suggestion is a “crass political stunt” and a “throw-back to pre-Fair Work labour market testing, which was universally rejected as unworkable and ineffective”.

The Gillard government is currently considering changes to the 457 visas sub-class and in late April Immigration Minister Brendan O’Connor signalled possible legislative changes before the election as he revealed there could be in excess of 10,000 breaches of the system.

While the system is designed to respond to skills shortages, O’Connor said the system was being rorted, but he was yet to determine what reforms would take place.

Figures revealed by the Immigration Minister found between March 2012 and March 2013 the number of 457 visa-holders in Australia increased by 19.2% to 105,600.

Some business groups, such as the AMMA and the Australian Industry Group, have said the foreign worker campaign is doing international damage to Australia’s reputation and image.