Global mobility has been effectively halted by the COVID-19 pandemic. The MinterEllison Migration team considers the changes Australian employers will face in the 'new normal', and suggests three key things employers should consider in relation to management of their foreign workers.

Key takeouts

1. Take positive steps to monitor businesses human resource needs and the immigration landscape.

2. Being proactive in the approach to workforce planning (including how roles are advertised) can minimise delays from visa processing timeframes.

3. Get specialist advice on what options are available for sponsoring foreign workers and what visa streams may be suitable.

The movement of workers has been of increasing importance over the last decade due to globalisation, emerging markets and talent scarcity. One of the major side effects of the COVID-19 pandemic in Australia has been its impact on global worker mobility.

When Australia's international borders closed on 20 March 2020, the effect on many Australian organisations was immediate. Many temporary visa holders overseas on holiday or visiting family found themselves stuck offshore, unable to return in time to resume work for their Australian employers. Similarly, businesses who had imminent plans for sponsoring workers for various projects, expansions or to fill skill shortages were faced with the uncertainty of whether any of these workers would be able to travel to Australia.

On 24 March 2020, Prime Minister Scott Morrison implemented a 'do not travel' ban on Australian citizens and permanent residents. This has further impacted global businesses whose Australian personnel cannot depart Australia.

Five months after the initial effects of the international border closures were felt, businesses are now looking to the long term and are considering how their plans for FY 20-21 and beyond will be impacted. Australian businesses need to evaluate what plans and projects will need to be adjusted in light of the continued border closures and uncertainty about the movement of workers globally.

Here are three key things businesses should keep in mind when managing their foreign workers and skill shortages needs.

Get organised: managing visa processing

Organisations often have vacancies that need to be urgently filled by foreign nationals because suitable workers cannot be found from within Australia. Foreign nationals cannot start work until they are granted an appropriate visa and can travel to Australia. In the current environment, the process of obtaining a visa is significantly impacted by two main factors.

Firstly, processing of visa applications has slowed. The Department of Home Affairs, the department responsible for the management of Australia's visa programme, has advised of significant disruption to its services as a result of COVID-19. This is due to a range of factors, including the closure or reduced capacity of related services (such as biometric collection and visa medical services), the redeployment of Department of Home Affairs staff to other duties (such as the processing of travel exemptions), and the temporary closure of a number of offshore processing centres due to the pandemic. For example, the Temporary Skill Shortage (TSS) Visa, the standard temporary visa to bring out skilled workers to fill skill shortages, previously took approximately one month to process. The current published processing time is now between 43 and 66 days, and many are reporting processing times far in excess of this.

Secondly, the process of obtaining a sponsored visa is more difficult than it was in the pre-COVID-19 environment. The Department of Home Affairs is reviewing sponsored visa applications closely, to ensure that there is a genuine need for the foreign worker, and that the position cannot reasonably be filled by an Australian. Given the rising unemployment rates in Australia, and the significant economic downturn across a number of industries, it is perhaps no surprise that the sponsoring of foreign workers is facing increased scrutiny.

A proactive approach to workforce planning will help considerably in minimising delays in filling roles and on-boarding staff. Human resource specialists can act by thinking about resourcing needs in the mid to longer term so they are ready when the need arises to employ from the global labour market.

Pro tips:

  • Businesses need to start planning what workers they may require inside Australia in the next 6 – 12 months. If workers are outside Australia, businesses may need to account for several months of lead time for the visa processing and travel exemption processing periods
  • When hiring for a role, HR specialists should consider whether the form of advertising meets the TSS 'labour market testing' requirements. That way, if they cannot find a local hire, they can hire a foreign worker without additional advertising adding to the lead time.

Think strategically: obtaining travel ban exemptions

Australia's borders are currently closed to all persons who are not Australian citizens, permanent residents, resident New Zealand citizens or immediate family members of Australian citizens and permanent residents. All other persons can only enter Australia if the Australian Border Force (ABF) Commissioner grants an exemption, which are only available on limited grounds on a case by case discretionary basis. People with critical skills may be granted an exemption if their employer can demonstrate the urgent need for that person to undertake critical work in Australia.

This process has led to extreme uncertainty for businesses in being able to plan for foreign workers entering Australia. With insufficient guidance on whether a worker's role is sufficiently 'critical', many businesses may consider delaying projects and expansions if they cannot guarantee they will be able to have the workers they need on site.

People who are granted travel exemptions and allowed to enter Australia must undertake a mandatory 14 day quarantine period, further delaying a worker's ability to commence employment in Australia.

Businesses need to consider what foreign workers they critically require in Australia for the foreseeable future. To be successful in obtaining a travel exemption for a worker, businesses must be able to provide strong supporting evidence to demonstrate the need for that worker in Australia. They should also consider whether they are willing to pay the cost of the persons quarantine, which may impact the decision of the ABF Commissioner.

MinterEllison has experience in obtaining travel exemptions for a range of employers and industries, and can provide strategic advice in global workforce planning.

Consider alternate options: Labour Agreement and Global Talent Scheme Streams

As the traditional visa programmes may become more difficult to access due to increased scrutiny and extended visa processing times, businesses may wish to consider alternate visa options to address their skill shortages.

The standard sponsored visa options have strict requirements around skills, work experience, English requirements, and which occupations are available for sponsorship.

The Department of Home Affairs has developed a number of alternate options for employers who have a need to sponsor workers that do not clearly fit within the traditional visa program.

  • Labour Agreements: A Labour Agreement is a formal arrangement negotiated between an employer and the Australian Government to allow an employer to recruit skilled overseas workers where the standard visa program is not suitable. Labour Agreements allow for flexibility in the occupation requirements, skill requirements, English requirements and salary requirements of the traditional visa program.
  • Designated Area Migration Agreements (DAMA): DAMA are a type of Labour Agreement where a specific region, state or territory in Australia has negotiated an agreement with the Australian Government to provide access to overseas workers in skill shortage occupations within that area.
  • Employers within that area can then negotiate a labour agreement within the settings of the head agreement for the region/state/territory. This provides flexibility for regions to respond to their unique economic and labour market conditions.
  • Global Talent Employer Sponsored (GTES): The GTES is a specific type of labour agreement designed to attract highly skilled migrants with cutting edge skills into niche occupations to help innovate established businesses and contribute to Australia’s developing start-up ecosystem.
  • The GTES is available to two types of employers.
  • The Established Business stream is for public companies or businesses with an annual turnover of more than $4million who can meet the criteria to be an accredited sponsor with Home Affairs. It allows employers to sponsor highly skilled applicants where the position will result in a skills transfer to Australian workers and the salary offered will be over the Fair Work High Income Threshold ($153,600 as at 1 July 2020).
  • The Start-up stream is for businesses operating in a technology based or STEM related field who are endorsed by an independent start-up advisory panel. It allows employers to sponsor highly skilled applicants where the position will result in a skills transfer to Australian workers and the salary package will be at least $80,000.