Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Amendment of the Migration Act 1958
1 Subsection 140GB(2)
Repeal the subsection, substitute:
(2) T he Minister must approve an approved sponsor's nomination if:
(a) in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC --the labour market testing condition under section 140GBA is satisfied; and
( b ) in any case--the prescribed criteria are satisfied.
Note: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemption s from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.
2 After section 140GB
Insert:
140GBA Labour market testing--condition
Scope
(1) This section applies to a nomination by an approved sponsor, under section 140GB, if:
(a) the approved sponsor is in a class of sponsors prescribed by the regulations; and
(b) the sponsor nominates:
(i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and
(ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and
(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection ( 2) to require the sponsor to satisfy the labour market testing condition in this section, in relation to the nominated position .
(2) For the purposes of paragraph ( 1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.
Labour market testing condition
( 3 ) The labour market testing condition is satisfied if:
(a) the Minister is satisfied that the approved sponsor has undertaken labour market testing in relation to the nominated position within a period determined under subsection ( 4) in relation to the nominated occupation; and
(b) the nomination is accompanied by:
(i) evidence in relation to that labour market testing (see subsections ( 5) and (6)); and
(ii) if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the approved sponsor--information about those redundancies or retrenchments; and
(d) having regard to that evidence , and information (if any), the Minister is satisfied that:
(i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and
(ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.
( 4 ) For the purposes of paragraph ( 3)(a), t he Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation.
(4A) Despite paragraph ( 3)(a) and subsection ( 4), if there have been redundancies or retrenchments as mentioned in subparagraph ( 3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.
Evidence of labour market testing
(5) For the purposes of subparagraph ( 3)(b)(i), the evidence in relation to the labour market testing:
(a) must include information about the approved sponsor's attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions (see also subsection ( 6)); and
(b) may also include other evidence, such as:
(i) copies of, or references to, any research released in the previous 4 months relating to labour market trends generally and in relation to the nominated occupation; or
(ii) expressions of support from Commonwealth, State and Territory government authorities with responsibility for employment matters; or
(iii) any other type of evidence determined by the Minister, by legislative instrument, for this subparagraph.
(6) For the purposes of paragraph ( 5)(a), the information mentioned:
(a) must include details of:
(i) any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor; and
(ii) fees and other expenses paid (or payable) for that advertising; and
(b) may also include other information, such as:
(i) information about the approved sponsor's participation in relevant job and career expositions; or
(ii) details of any other fees and expenses paid (or payable) for any recruitment attempts mentioned in paragraph ( 5)(a) (including any participation mentioned in subparagraph ( i) of this paragraph); or
(iii) details of the results of such recruitment attempts, including details of any positions filled as a result.
(6A) If the approved sponsor elects to provide other evidence and information as mentioned in paragraphs ( 5)(b) and (6)(b), the Minister may take that evidence and information into account. But if the approved sponsor elects not to provide such other evidence or information, the Minister is not to treat the nomination less favourably merely because of that fact.
Definitions
( 7 ) In this section:
"associated entity" has the same meaning as in Part 2A of the regulations.
"Australian permanent resident" means an Australian permanent resident within the meaning of the regulations.
"eligible temporary visa holder" : a person is an eligible temporary visa holder in relation to a nomination by an approved sponsor if, at the time when the nomination is made:
(a) the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and
(b) the person is employed in the agricultural sector by the approved sponsor (or an associated entity of the approved sponsor); and
(c) the temporary visa does not prohibit the person from performing that employment.
"labour market testing" , in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.
140GB B Labour market testing-- major disaster exemption
(1) An approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if an exemption under subsection ( 2) of this section is in force in relation to the sponsor.
(2) The Minister may, in writing , exempt a sponsor from the requirement to satisfy the labour market testing condition in section 140GBA if the Minister is satisfied that:
(a) a n event (a major disaster ) has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required ; and
(b) the exemption is necessary or desirable in order to assist disaster relief or recovery.
(3) In deciding whether a major disaster has occurred, the Minister must have regard to matters including the following:
(a) the number of individuals affected;
(b) the extent to which the nature or extent of the disaster is unusual.
( 4 ) An exemption of an approved sponsor under subsection ( 2):
(a) may be expressed to apply in relation to:
(i) a specified nomination by the sponsor; or
(ii) a specified class of nominations by the sponsor; and
(b) must be expressed to apply to a particular sponsor specified in the exemption rather than a class of sponsors , despite subsections 33(3A) and (3AB) of the Acts Interpretation Act 1901 .
(5) An exemption made under subsection ( 2) is not a legislative instrument.
140GBC Labour market testing-- skill and occupational exemption s
Scope
(1) This section applies to a nomination by an approved sponsor, under section 140GB, if the sponsor nominates:
( a ) a proposed occupation for the purposes of paragraph 140GB(1)(b); and
( b ) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a vis a, identified in the nomination .
Skill and occupational exemption s
( 2 ) The approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:
(a) either or both of the following are required for the nominated position, in relation to the nominated occupation:
(i) a relevant bachelor degree or higher qualification , other than a protected qualification ;
(ii) 5 years or more of relevant experience , other than protected experience ; and
( b ) the nominated occupation is specified for the purposes of this subsection under subsection ( 4 ).
( 3 ) The approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if:
(a) either or both of the following are required for the nominated position, in relation to the nominated occupation:
(i) a relevant ass ociate degree, advanced diploma or diploma covered by the AQF , other than a protected qualification ;
(ii) 3 years or more of relevant experience , other than protected experience ; and
(b) the nominated occupation is specified for the purposes of this subsection under subsection ( 4 ).
L egislative instrument
( 4 ) T he Minister may, by legislative instrument :
(a) specify an occupation (or occupations) for the purposes of subsection ( 2) ; and
( b ) specify an occupation (or occupations) for the purposes of subsection ( 3).
(5) Despite subsection 44(2) of the Legislative Instruments Act 2003 , section 42 (disallowance) of that Act applies to an instrument made under subsection ( 4).
Definitions
(6) In this section:
"AQF" means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003 .
"protected experience" means experience in the field of engineering (including shipping engineering) or nursing.
"protected qualification" means a qualification (however described) in engineering (including shipping engineering) or nursing.
Part 2 -- Amendment of the Migration Regulations 1994
3 After regulation 2.72
Insert:
For paragraph 140GBA(1)(a) of the Act, the class of standard business sponsors is a prescribed class of sponsor .
Part 3 -- Saving and a pplication
4 Saving of regulations
Despite the amendment made by item 1, regulations in force for the purposes of subsection 140GB(2) of the Migration Act 1958 immediately before the commencement of this Schedule continue in effect, on and after that commencement, as if they had been made for the purposes of paragraph 140GB(2)(b) of that Act, as in force after that commencement.
5 Application--nominations by approved sponsors
The amendments of the Migration Act 1958 and the Migration Regu l ations 1994 made by Parts 1 and 2 of this Schedule apply in relation to a nomination under section 140GB of that Act that is made on or after the commencement of this Schedule.
6 Application--determined labour market testing periods
( 1 ) This item applies i f, on or after the commencement of this Schedule, an approved sponsor makes a nomination under section 140GB of the Migration Act 1958 to which section 140GBA of that Act (which covers the labour ma rket testing condition) applies.
(2) P aragraph 140GB A ( 3 )(a) of the Migration Act 1958 applies (subject to subsection 140GBA(4A)) in relation to a period determined for the purposes of that paragraph whether the period, as applied in relation to the nomination, starts before, on or after the day this Act is given the Royal Assent.
Note: Subsection 140GBA( 3 ) of the Migration Act 1958 provides (among other things) that in order to satisfy the labour market testing condition for a nomination, an approved sponsor must undertake labour market testing within a period determined under subsection 140GBA(4) for the purposes of paragraph 140GBA(3)(a) .