Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Hansard source

We are just waiting for a grey to be distributed on the amendments. I will start by talking to them. We heard in the second reading debate today much about Labor and the government coming together to do a deal for workers—Chinese workers and, of course, Australian workers—around IFAs, investment facilitation agreements. I would like to acknowledge that Labor did get some outcomes with respect to IFAs. We have not seen an IFA in a trade deal before. It was a very worrying issue for a number of workers in Australia that IFAs could potentially be a new avenue for deregulation of the labour market. However, there are still a number of loopholes in the ChAFTA that we can correct through legislation here today. The Greens plan to move some amendments that will ensure that labour market testing applies at least to all occupations that are currently covered by other labour market testing in other agreements. To step through it, we will be taking the amendments together.

The CHAIRMAN: Senator Whish-Wilson. Maybe I could advise you. You indicated you were waiting on the running sheet. There will not be a running sheet because there is only one set of amendments and they are all yours. We will just deal with yours as you see fit.

Thank you, Chairman. With respect to the Customs Amendment (China-Australia Free Trade Agreement Implementation) Bill, I move:

(1) Title, page 1 (line 1), after “ Customs Act 1901 ”, insert “, the Migration Act 1958 and the Migration Regulations 1994 ”.

[labour market testing; licensing requirements]

(2) Clause 1, page 1 (line 5), after “ Customs ”, insert “ and Migration ”.

[labour market testing]

(3) Clause 3, page 3 (line 2), before “Legislation”, insert “(1)”.

[licensing requirements]

(4) Clause 3, page 3 (after line 5), at the end of the clause, add:

(2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.

[licensing requirements]

(5) Schedule 1, page 17 (after line 17), after Part 2, insert:

Part 2A—Labour market testing

Migration Act 1958

2A After section 38B

Insert:

38C Temporary Work (Short Stay Activity) visas

(1) This section applies in relation to an applicant for a visa referred to in the regulations as a Subclass 400 (Temporary Work (Short Stay Activity)) visa if:

(a) the applicant is applying for the visa on the basis that he or she will be engaged to undertake work that is highly specialised; and

(b) the applicant will be engaged to undertake work as an installer or servicer of equipment or machinery that was supplied on the condition that it be installed or serviced by persons engaged by the person for whom the applicant is undertaking the work; and

(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection 140GBA(2) to require the person for whom the applicant will undertake the work to perform testing of the Australian labour market, and give evidence and information to the Minister, in relation to the work as set out in paragraph (2)(a).

(2) It is a criterion for the visa that:

(a) the person proposing to engage the applicant to perform the work has:

(i) performed testing of the Australian labour market, in accordance with the regulations, to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to undertake the work; and

(ii) given the Minister the evidence in relation to that labour market testing, and the information about redundancies or retrenchments in a business or associated entity of the person, that is prescribed by the regulations, and

(b) 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 undertake the work; and

(ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to undertake the work.

(3) The Minister may, by legislative instrument, exempt applicants in a specified class from the operation of subsection (2) in relation to specified work if:

(a) the Minister is satisfied that:

(i) an event has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required; and

(ii) the exemption is necessary or desirable in order to assist disaster relief or recovery; or

(b) the Minister is satisfied that:

(i) either or both a qualification prescribed by the regulations, or experience of a kind and for a period prescribed by the regulations, is required to undertake the specified work; and

(ii) the work is of a kind prescribed by the regulations.

(4) The Minister must ensure that, as soon as reasonably practicable after the commencement of this subsection, and at all later times, there are in force regulations for the purposes of subparagraphs (2)(a)(i) and (ii).

(5) Words and expressions used in this section have the same meanings as in section 140GBA.

2B Paragraph 140GBA(1)(a)

Repeal the paragraph, substitute:

(a) the approved sponsor is:

(i) a standard business sponsor (within the meaning of the regulations); or

(ii) in a class of sponsors prescribed by the regulations; or

(iii) a person (other than a Minister) who is a party to a work agreement that is entered into on or after the commencement of this subparagraph; and

[labour market testing]

(6) Schedule 1, page 17 (after line 17), after proposed item 2B, insert:

Migration Regulations 1994

2C After paragraph 457 .223(2)(d) of Schedule 2

Insert:

(da) if the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation in Australia—either:

(i) the applicant holds that licence, registration or membership, and has given the Minister a copy of the licence, registration or membership; or

(ii) the applicant demonstrates that he or she can meet the requirements to obtain that licence, registration or membership; and

2D After paragraph 457 .223(4)(e) of Schedule 2

Insert:

(eaa) if the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation in Australia—either:

(i) the applicant holds that licence, registration or membership, and has given the Minister a copy of the licence, registration or membership; or

(ii) the applicant demonstrates that he or she can meet the requirements to obtain that licence, registration or membership; and

2E Paragraph 8107(3)(c) of Schedule 8

Repeal the paragraph, substitute:

(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:

(i) must not perform the occupation until the holder holds the licence, registration or membership; and

(ii) must hold the licence, registration or membership within 60 days after the holder’s arrival in Australia; and

(iii) before the holder performs the occupation—must give the Department documentation of the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

(iv) must comply with each condition or requirement to which the licence, registration or membership is subject; and

(v) must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

(vi) must notify the Department, in writing, as soon as practicable of any changes to the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject.

I will give a bit of background. Chapter 10 of the agreement sets out specific categories of employment for which neither party shall require labour market testing for workers entering under a temporary 457 visa. That is in article 10.4 of ChAFTA. These specified categories include various classes of professional employees, which is consistent with previous trade agreements.

However, chapter 10-A also includes an exception for the requirement of labour market testing for contractual service providers for a period of up to four years. A contractual service provider is someone who has the necessary qualifications, skills and work experience accepted as meeting Australian standards. That is in Annex 10-A, 9 and 11. The agreement includes 'installers and servicers of China for a period of up to three months'. Annex 10-A, 12 to 13, says:

An installer or servicer must abide by Australian workplace standards and conditions ...

The feedback that the Greens have received from a number of stakeholders in the union movement—for example, the Electrical Trade Union, the ACTU and the CFMEU—is that the agreement that Labor had with the government did not safeguard labour market testing for contractual service providers or installers and servicers. Presumably—and I have no doubt Labor will want to talk to this—this is because they believed it would null the agreement or perhaps compel it to be re-negotiated. Instead, the ALP proposed temporary skilled migration income thresholds and other measures, which we have seen the detail on.

The Greens' amendments relate to recommendations in a report, which I think a number of us have read, by Dr Joanna Howe from Adelaide University. That report is entitled The impact of the China-Australia Free Trade Agreement on Australian job opportunities, wages and conditions. She makes two key recommendations. Her report recommends:

... the Government clearly establish in its enabling legislation that labour market testing will apply to all Chinese workers coming into Australia as contractual service suppliers or as installers and servicers via Annex 10-A in the China-Australia Free Trade Agreement.

Recommendation 2 says:

This report recommends that the requirement of labour market testing in free trade agreements be consistent with the 457 visa program. This requirement of labour market testing for certain categories of temporary migrant workers should be enshrined in the Migration Act 1958 ...

We have received some advice that this is entirely possible for us to do today. Article 10.4.3 says:

In respect of the specific commitments on temporary entry in this Chapter, unless otherwise specified in Annex 10-A, neither Party shall:

(a)   impose or maintain any limitations on the total number of visas to be granted ...

(b)   require labour market testing, economic needs testing or other procedures ...

Annex 10-A says:

Australia requires a natural person of China seeking temporary entry to its territory under the provisions of Chapter 10 ... And this Annex to obtain appropriate immigration formalities prior to entry. Grant of temporary entry in accordance with this Annex is contingent on meeting eligibility requirements contained within Australia’s migration law and regulations, as applicable at the time of an application for grant of temporary entry. Eligibility requirements for grant of temporary entry in accordance with paragraphs 5 through 11 of this Annex include, but are not limited to, employer nomination and occupation requirements.

There are a number of amendments—six in total—but essentially they are broken down into two key areas. Amendments (1) to (5) essentially deal with labour market testing and basically put in place requirements for labour market testing for installers, servicers and contractual service providers. This sets out that labour market testing must be required for subclass 400 visa holders, which includes installers and servicers. The second section would require labour market testing to be applied to contractual service providers entering under subclass 457 visa holders. The 457 visas require a standard business sponsor, which is why the amendment addresses this issue in context.

Amendment (6), on licensing requirements, creates a dual responsibility on both the visa holder and the sponsoring employer to provide evidence of obtaining a licence within 60 days. Essentially, this puts a reverse onus of proof on those licensing requirements. Progress reported.