Brendan O'Connor (Gorton, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill. I ask leave of the House to move government amendments (1) to (16).

Leave granted.

I move government amendments (1) to (16):

(1) Schedule 1, heading, page 4 (line 1), omit "purpose", substitute "preliminary".

(2) Schedule 1, item 1, page 4 (after line 32), after section 140AA, insert:

140AB Ministerial Advisory Council on Skilled Migration

(1) The Minister must take all reasonable steps to ensure that, at all times, there is in existence a council that:

  (a) is known as the Ministerial Advisory Council on Skilled Migration; and

  (b) is established under the executive power of the Commonwealth; and

(c) includes representatives of unions, industry and State and Territory governments and other members (if any) nominated by the Minister; and

  (d) meets at least quarterly.

(2) Without limiting its functions apart from this section, the Ministerial Advisory Council on Skilled Migration is to provide advice to the Minister in relation to the temporary sponsored work visa program.

(3) Schedule 2, item 2, page 6 (lines 15 to 18), omit paragraphs 140GBA(3)(b) and (c), substitute:

  (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

(4) Schedule 2, item 2, page 6 (line 19), after "evidence,", insert "and information (if any),".

(5) Schedule 2, item 2, page 6 (lines 19 to 22), omit "the Minister is satisfied that a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position.", substitute:

     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.

(6) Schedule 2, item 2, page 6 (line 26) to page 7 (line 18), omit subsections 140GBA(5) and (6), substitute:

  (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.

(7) Schedule 2, item 2, page 7 (before line 19), before the heading to subsection 140GBA(7), insert:

  (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.

(8) Schedule 2, item 2, page 7 (after line 20), before the definition of Australian permanent resident in subsection 140GBA(7), insert:

  associated entity has the same meaning as in Part 2A of the regulations.

(9) Schedule 2, item 2, page 7 (after line 22), after the definition of Australian permanent resident in subsection 140GBA(7), insert:

  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.

(10) Schedule 2, item 2, page 9 (line 3), after "qualification", insert ", other than a protected qualification".

(11) Schedule 2, item 2, page 9 (line 4), after "experience", insert ", other than protected experience".

(12) Schedule 2, item 2, page 9 (line 12), after "AQF", insert ", other than a protected qualification".

(13) Schedule 2, item 2, page 9 (line 13), after "experience", insert ", other than protected experience".

(14) Schedule 2, item 2, page 9 (line 25), omit the heading to subsection 140GBC(6), substitute:

Definitions

(15) Schedule 2, item 2, page 9 (after line 28), at the end of subsection 140GBC(6), add:

  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.

(16) Schedule 2, item 6, page 11 (line 19), after "applies", insert "(subject to subsection 140GBA(4A))".

The amendments to the bill are in relation to the requirement for sponsors to undertake labour market testing prior to lodging an application for nomination approval. In the bill as it currently stands, the labour market testing requirement is met if the minister is satisfied that a suitably qualified Australian citizen or an Australian permanent resident is not readily available to fill the position. It is proposed to extend this to include eligible temporary visa workers on a work-and-holiday 462 visa or a working holiday 417 visa in the agriculture sector who are lawfully employed by the sponsor or an associated entity of the sponsor at the time of the application for nomination. The labour market testing requirement will now be satisfied if a suitably qualified and experienced Australian citizen, Australian permanent resident or eligible temporary visa holder is not readily available to fill the nominated position.

In relation to the evidentiary requirements for sponsors, I propose that it be mandatory for a sponsor to provide information about their attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any similar positions. Sponsors must also provide details of any advertising, paid or unpaid, of the position and any similar positions commissioned or authorised by the approved sponsor and fee and other expenses paid or payable for that advertising. In the bill as it currently stands, the provision of information about recruitment attempts is only one of several evidentiary options that sponsors may choose to provide as proof that they have adequately tested the local labour market prior to lodging a nomination. Requiring the mandatory provision of such information provides a much stronger test of a sponsor's efforts to fill vacancies in their business with Australian workers.

This amendment also clarifies that, if the approved sponsor elects to provide evidence and information other than evidence of advertising and fees or payment of fees to support their claims to have tested the labour market, the minister may take the evidence into account. The nomination will not, however, be treated less favourably if the approved sponsor elects not to provide such additional evidence or information. In addition, I propose a mandatory requirement for sponsors to provide information if one or more Australian citizens or permanent residents were made redundant or retrenched from positions in the nominated occupation in the sponsor's business or associated entity in the four months prior to the lodging of a nomination. If there have been redundancies or retrenchments, labour market testing must be undertaken by the sponsor after those redundancies and retrenchments.

The bill currently allows for skill and occupational exemptions to the labour market testing requirement to apply to specific occupations by legislative instrument within skills level 1 or 2 as currently described in the Australian and New Zealand Standard Classification of Occupations. I now intend to restrict the skill and occupational exemptions in relation to labour market testing, with the effect that nominations made by the approved sponsors requiring either experience or a qualification or both in engineering, including shipping engineering, or nursing cannot be exempt from labour market testing. This will be applied in a manner consistent with Australia's international trade obligations. Furthermore, in line with the reduction in the period over which a sponsor will be required to test the local labour market from six to four months, I propose a consequential amendment to the evidence requirement for labour market testing in relation to research on the labour market trends generally, and in relation to relevant occupations I propose to reduce the period in which this research would be released from six to four months prior to a sponsor lodging a nomination.

Lastly, to ensure that the views of the relevant stakeholders are considered in any regulatory changes to the subclass 457 visa program and in recognition of the advisory function of the Ministerial Advisory Council on Skilled Migration, I propose the inclusion of the requirement that the minister must take all reasonable steps to ensure that at all times there is in existence the Ministerial Advisory Council on Skilled Migration—a body which includes representatives of unions, industry, state and territory governments and other members, if any, nominated by the minister—and that it meet at least on a quarterly basis. Without limiting the functions, the Ministerial Advisory Council on Skilled Migration is to provide advice to the minister in relation to the temporary sponsored work visa program. I commend the proposed amendments to the House.

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