Where it applies
Making a standard business sponsor (SBS) application requires an attestation signed stating that the sponsor have a demonstrated commitment to employing local labour and declare they will not engage in discriminatory recruitment practices.
When applying for a TSS visa, the Department of Home Affairs (DOHA) must be satisfied that the standard business sponsor has not engaged in discriminatory recruitment practices. This is known as the ‘non-discriminatory workforce test’. Generally the ‘workforce test’ is taken to be satisfied without inquiry, unless there is reason or evidence to doubt this. This may come in the form of an allegation being received or information discovered in the assessment of the application and we discuss possible scenarios in which the DOHA will pursue investigation further in the article.
Certain applications will require the Labour Market Testing (LMT) requirement to be met. Applications that have met this requirement will be taken to not have engaged in discriminatory recruitment practices. However if a large percentage of the sponsor’s workforce is made up of temporary visa holders that did not have to fulfil the LMT requirement, the DOHA may choose to take a closer look.
The non-discriminatory recruitment practices requirement is also imposed as a sponsor obligation; a standard business sponsor must not engage in discriminatory recruitment practices so long as their sponsorship remains valid. Failure to do so may lead to the bar or cancellation of their sponsorship approval.
Discriminatory recruitment practices
The DOHA defines discriminatory recruitment practices to be recruitment practices that directly or indirectly discriminates against a person based on the immigration status or citizenship of the person, other than a practice undertaken to comply with a Commonwealth, State or Territory law. That is, the abuse of the TSS visa program to hire overseas workers without regard to the availability of Australian citizens or permanent residents. Discrimination can be direct or indirect.
Direct discrimination: When a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics. An example is when a sponsor only interviews and hires persons of a certain visa status, and disregards all other applicants despite their having the same qualifications.
Indirect discrimination: When there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute. An example is when a sponsor places advertisements only in Indian newspapers and the advertisement is in an Indian language, rendering it inaccessible to those who do not know the language, despite the job not requiring knowledge of the language.
Further examples of discriminatory recruitment include but are not limited to:
- Only interviewing or hiring people who have a certain citizenship or visa status
- Only advertising a position on a platform that is mostly accessible by persons of a certain citizenship, such as foreign language newspapers or websites used by persons outside Australia
- Not having a competitive recruitment process that affects people of a certain citizenship or visa status
The following are not considered to be discriminatory recruitment practices for the purpose of monitoring this obligation are:
- Intra-company transfers from an overseas related business
- Internal recruitment and promotion within Australia
- Re-nomination of a currently sponsored person.
When the DOHA investigates
The DOHA may choose to inquire further into a sponsor if they have suspicions of discriminatory recruitment practices. This could happen for a number of reasons. Here are some examples:
- An analysis of the staff profile of the sponsoring business shows a high proportion of overseas workers compared to Australian workers.** It does not matter which visa subclass the overseas worker holds.
- Sponsor has a high number of visa holders that are largely from the same nationality, it does not matter which visa subclass the overseas worker holds
- Allegations received by the DOHA that the sponsor is giving preference to workers from a particular citizenship or visa status or engaging in recruitment practices
- Allegations received by the DOHA that the sponsor is terminating workers and hiring or replacing them with workers from a specific country.
** The DOHA will take into consideration what a high percentage of overseas workers could be a reasonable proportion, depending on the context, the size of the business and other factors, such as geographic location. It is also understood that legitimate reasons exist, such as specific job requirements or a business need:
- Particular language requirements that favour a particular country’s citizens
- Skills or experience that favour a group of persons from a particular region or country
- Internal promotions or transfers, including intra-corporation transfers from one country to Australia)
If the above applies to your company it would be helpful if information explaining your business circumstances was provided in the application.
If the DOHA has a reason to investigate, they will look at recruitment practices in the period during which the person was an approved sponsor.
Is it important that the sponsor should keep documents on hand that demonstrate how the sponsored position was recruited and that this process did not discriminate based on citizenship or visa status. If they are unable to, they may fail on another sponsorship obligation, which the “Obligation to provide records and information”. As discussed in our previous article, multiple failures to satisfy obligations will worsen the case for the sponsor and the DOHA may choose to take action by barring or cancellation their sponsorship approval.
Also remember that the DOHA will look at the recruitment practices of each nomination separately, and as such sponsor may be found to have failed to satisfy the obligation numerous times.
This is the evidence you should keep and that you will need should the DOHA decide to investigate:
- Payroll evidence showing employment of a diverse range of employees
- Evidence of Australians working in similar job roles, for the same business or an associated entity
- Recruitment advertisements that demonstrate that jobs were clearly advertised through a platform that is accessible to most residents in Australia, such as being written in English and published on a common platform that many Australians use
- Advertisements published in Australia and not solely outside Australia
- Evidence of a competitive recruitment process
- Clear position selection criteria that correlates with the skills and qualifications relevant to the job. It should not contain information that could discourage applicants based on their nationality, such as language requirements or cultural knowledge that is not required to fulfill the role.
- Evidence that demonstrates a lack of suitably qualified applicants in the local area. Regional areas may suffer this circumstance as it may have a lower skill base and hence a smaller number of suitable candidates who are available for the role
- Other credible evidence demonstrating a legitimate reason for the recruitment outcome
If the sponsor is found to be engaged in discriminatory recruitment practices, they may receive a bar or cancellation of their sponsorship approval. The obligation came into effect on 19 April 2016 or from the date the sponsorship was approved, whichever is the later date.