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Subclass 457 Labour Market Testing – new legislative instruments

1. Period of Labour Market Testing
New Legislative Instrument IMMI 13/136 [F2013L01953] Determination of Specified Period in Which Labour Market Testing Must be Undertaken determines “for the purposes of subsection 140GBA(4) of the Act, that the period within which labour market testing is required in relation to a nominated occupation is twelve (12) months”.

2. Exempt occupations

New Legislative Instrument IMMI 13/137 [F2013L01952Migration Act 1958 – Specification of Occupations Exempt from Labour Market Testing specifies occupations that are classified in ANZSCO as Skill Level 1 or 2 that are exempt from the labour market testing requirement.

ANZSCO Skill Level 1
[Migration Act Section 140GBC(2)] Nominated occupations are exempt if the nominated occupation requires a relevant bachelor degree or higher and/or 5 or more years of relevant work experience AND the nominated occupation is specified by the Minister.

The Minister has specified all occupations that are ANZSCO Skill Level 1.

ANSZCO Skill Level 2
[Migration Act Section 140GBC(3)]
Nominated occupations are exempt if the nominated occupation requires a relevant associate degree, advanced diploma or diploma covered by the AQF and/or 3 or more years of relevant work experience AND the nominated occupation is specified by the Minister.
The Minister has specified all occupations that are ANZSCO Skill Level 2.

3. Exempt occupations because of Australia’s International Trade Obligations

New Legislative Instrument IMMI 13/138 [F2013L01954] Migration Act 1958 – Determination of International Trade Obligations Relating to Labour Market Testing determines the obligations of Australia, under international law that relate to international trade, as international trade obligations of Australia where labour market testing would be inconsistent with that obligation

(a) the Protocol on Trade in Services to the Australia-New Zealand Closer Economic Relations Trade Agreement:

(i)  Executives and Senior Managers as Intra-Corporate Transferees;
(ii)  Specialists as Intra-Corporate Transferees;
(iii)  Independent Executives;
(iv) Contractual Service Suppliers.

(b) the General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization:

(i)  Executives and Senior Managers as Intra-Corporate Transferees;
(ii) Independent Executives;
(iii)  Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(c) the Singapore-Australia Free Trade Agreement:

(i)  Executives and Senior Managers as Intra-Corporate Transferees;
(ii)  Specialists as Intra-Corporate Transferees;
(iii)  Independent Executives;
(iv)  Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(d) the Thailand-Australia Free Trade Agreement:

(i)  Executives and Senior Managers as Intra-Corporate Transferees;
(ii)  Specialists as Intra-Corporate Transferees;
(iii)  Independent Executives;
(iv)  Contractual Service Suppliers.

(e) the Australia-United States Free Trade Agreement:

(i) Executives and Senior Managers as Intra-Corporate Transferees;
(ii)  Independent Executives;
(iii)  Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(f) the Australia-Chile Free Trade Agreement:

(i)  Executives and Senior Managers as Intra-Corporate Transferees;
(ii)  Specialists as Intra-Corporate Transferees;
(iii)  Independent Executives;
(iv)  Contractual Service Suppliers.

(g) the ASEAN-Australia-New Zealand Free Trade Agreement:

(i)  Executives and Senior Managers as Intra-Corporate Transferees;
(ii)  Specialists as Intra-Corporate Transferees;
(iii)  Independent Executives;
(iv)  Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

(h) the Malaysia-Australia Free Trade Agreement:

(i)  Executives and Senior Managers as Intra-Corporate Transferees;
(ii)  Specialists as Intra-Corporate Transferees;
(iii)  Independent Executives;
(iv)  Specialists who have been nominated following two years full-time employment in Australia with the same nominating employer.

 

 

Source: Migration Institute of Australia