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Subclass 457 Changes

The Migration Amendment (Temporary Sponsored Visas) Bill 2013 has now been passed by both houses of Parliament.

Note: It is not clear when this will receive Royal Assent from the Governor General and therefore when it will come into effect.

During the course of its progress through Parliament certain amendments were made to the original Bill as described in the MIA Notice 46 on 7 June 2013. The amendments are mainly in relation to Labour Market Testing.

The Migration Amendment (Temporary Sponsored Visas) Act 2013 is not yet on ComLaw, but it, and the accompanying Explanatory Memorandum, can be found on the Parliament House website.

The following is a cursory summary of the provisions brought about by the passing of the Bill and should not be relied upon to provide advice.

1. Sponsorship visas: preliminary

[Sch 1 of the Act – begins the day after the Act receives Royal Assent]

• The purposes of the temporary sponsored work visa program which include addressing genuine skills shortages in Australia without displacing employment and training opportunities for Australian citizens and permanent residents, that sponsored workers are protected and the program is not used inappropriately.
• recognises the role of the Ministerial Advisory Council on Skilled Migration in providing advice to the Minister in relation to the temporary sponsored work visa program.

2. Labour market testing

[Sch 2 of the Act – begins on a day to be fixed by Proclamation or, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.]

Labour market testing 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 [specified by the Minister] to require the sponsor to satisfy the labour market testing condition.

Labour market testing conditions are satisfied if

• the Minister is satisfied that sponsor has undertaken labour market testing
• the nomination is accompanied by evidence of labour market testing
• where any Australian citizens or permanent residents have been made redundant or retrenched by the sponsor in previous 4 months, the nomination is accompanied by information about those redundancies or retrenchments
• the Minister is satisfied that no suitably qualified Australian citizen or permanent resident is not readily available to fill the nominated position
• the Minister is satisfied that a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.
Eligible temporary visa holders are persons holding a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and the person is employed in the agricultural sector by the approved sponsor (or an associated entity of the approved sponsor) and the temporary visa does not prohibit the person from performing that employment.

The Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation

Evidence of labour market testing

Labour market testing 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.

This 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 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.

Labour market testing may also include
(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.

The Minister may take that extra 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.

Labour market testing—major disaster exemption

A major disaster is one that has such a significant impact on individuals that a government response is required and the exemption is necessary or desirable in order to assist disaster relief or recovery.

In deciding whether a major disaster has occurred, the Minister must have regard to the number of individuals affected and the extent to which the nature or extent of the disaster is unusual.

Labour market testing—skill and occupational exemptions

1. Sponsors are exempt from labour market testing 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;[protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing]
(ii) 5 years or more of relevant experience, other than protected experience; [protected experience means experience in the field of engineering (including shipping engineering) or nursing]; and
(b) the nominated occupation is specified for the purposes of this subsection under subsection (4).

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 associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification; and
(ii) 3 years or more of relevant experience, other than protected experience;
and if

(b) the nominated occupation is specified by the Minister in a legislative instrument.

3. Subclass 457 visa conditions

[Sch 3 of the Act – begins the day after the Act receives Royal Assent]
Condition 8107(3)(b) and(3B)(b) will be changed to read:
If the Subclass 457 visa holder ceases employment with the sponsor, they period which they cease employment must not exceed 90 consecutive days. [up from 28]
This applies to visas in force before the commencement of this Act.

4. Sponsorship obligations

[Sch 4 of the Act – begins the day after if receives Royal Assent]
Sponsorship obligations set by the Minister may apply to all approved sponsors and former approved sponsors and must include, but is not limited to:

(a)  paying a market salary rate (however described) to a visa holder;
(b)  paying prescribed costs to the Commonwealth in relation to locating a former visa holder, and removing a former visa holder from Australia;
(c)  paying prescribed costs of the departure of a visa holder (or a former visa holder) from Australia;
(d)  complying with prescribed requirements to keep information, and provide information to the Minister;
(e)  notifying the Department of prescribed changes in the circumstances of an approved sponsor, a former approved sponsor, a visa holder or a former visa holder;
(f)  cooperating with the exercise of powers under or for the purposes of Subdivision F (which deals with inspector powers);
(g)  ensuring that a visa holder participates in an occupation, program or activity nominated by an approved sponsor (including by preventing the on hire of a visa holder);
(h)  requiring an approved sponsor or former approved sponsor not to transfer, charge or recover prescribed costs;
(i)  requiring an approved sponsor or former approved sponsor to meet prescribed training requirements.

5. Enforceable undertakings by sponsors

[Sch 5 of the Act – begins the day after the Act receives Royal Assent, except for the parts that refer to Part 6 of the Regulatory Powers (Standard Provisions) Act 2013, which will begin immediately that Part 6 commences. The Regulatory Powers Act enables Section 140H to be enforceable.

This applies to sponsorship obligations which arose before or after the commencement of this new Act.

Currently Section 140K (Sanctions for failing to satisfy sponsorship obligations) says that the Minister may bar sponsors from doing certain things or cancel the sponsorship approval.

The new Act will also allow the Minister:
•  to accept and undertaking under Section 140RA from the person to take specified action; or
• to refrain from taking specified action;
• or to provide a written undertaking to take specified action to ensure sponsorship obligations are not contravened
• or if the person has breached an undertaking, apply for an order from an eligible court directing a person to comply with an undertaking, or to pay the Commonwealth an amount up the amount of any financial benefit they gained from a breach or to pay compensation to another person who suffered loss or damage as a result of a breach.

 

6. Sponsorship inspector powers

[Sch 6 of the Act – begins the day after the Act receives Royal Assent]

Inspectors include Fair Work Inspectors.

The powers of inspectors (as specified in Section 140X of the Migration Act) will include investigating whether a person who is required under subsection 140H(1) to satisfy a sponsorship obligation has committed an offence, or contravened a civil penalty provision, under Subdivision C of Division 12 of this Part.