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This is a Bill, not an Act. For current law, see the Acts databases.
2016
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Putting Local
Workers First) Bill 2016
No. , 2016
(Mr Shorten)
A Bill for an Act to amend the law relating to 457
visas, and for related purposes
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendment of the Migration Act 1958
3
Migration Act 1958
3
Part 2--Amendment of the Migration Regulations 1994
14
Migration Regulations 1994
14
Part 3--Application and savings provisions
16
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
1
A Bill for an Act to amend the law relating to 457
1
visas, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Migration Amendment (Putting Local Workers
5
First) Act 2016.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provisions 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.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Amendment of the Migration Act 1958 Part 1
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
3
Schedule 1--Amendments
1
Part 1--Amendment of the Migration Act 1958
2
Migration Act 1958
3
1 Subsection 5(1)
4
Insert:
5
457 visa holder means the holder of a visa referred to in the
6
regulations as a Subclass 457 (Temporary Work (Skilled)) visa.
7
2 Subsection 5(1) (subparagraph (a)(ii) of the definition of
8
approved sponsor)
9
After "140G", insert "or 140GAA".
10
3 Subsection 5(1)
11
Insert:
12
Australian permanent resident has the meaning given by the
13
regulations.
14
Employment Minister means the Minister responsible for
15
administering the Fair Entitlements Guarantee Act 2012.
16
labour agreement means a formal agreement entered into between:
17
(a) the Minister, or the Employment Minister; and
18
(b) a person or organisation in Australia;
19
under which an employer is authorised to recruit persons to be
20
employed by that employer in the migration zone.
21
nominated occupation, in relation to a work agreement, has the
22
meaning given by subsection 140GC(1).
23
nominated project or enterprise, in relation to a work agreement,
24
has the meaning given by subsection 140GC(1).
25
overseas worker support plan means a document setting out how a
26
party to a work agreement (other than the Minister) will provide
27
457 visa holders with support during the period in which they are
28
employed or engaged by the party.
29
Schedule 1 Amendments
Part 1 Amendment of the Migration Act 1958
4
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
sponsor party, in relation to a work agreement, means a person, an
1
unincorporated association or a partnership in Australia that is a
2
party to the work agreement (other than the Minister).
3
Note:
Person is defined to include a body politic or corporate, see section 2C
4
of the Acts Interpretation Act 1901.
5
training plan means a document setting out how a sponsor party to
6
a work agreement will contribute to addressing future skill needs in
7
Australia in the sector to which the work agreement relates.
8
4 Subsection 5(1) (definition of work agreement)
9
Repeal the definition, substitute:
10
work agreement has the meaning given by section 140GC.
11
5 After section 140GA
12
Insert:
13
140GAA Approval ceasing effect--employment of 457 visa holders
14
in prescribed sectors of economy
15
(1) An approval as a sponsor ceases to have effect if:
16
(a) the sponsor, or an associated entity (within the meaning of
17
Part 2A of the regulations) of the sponsor, employs
18
employees in a sector of the economy that is prescribed by
19
the regulations for the purposes of this subsection; and
20
(b) either:
21
(i) the percentage of those employees who are 457 visa
22
holders is greater than the percentage prescribed by the
23
regulations in relation to that sector; or
24
(ii) the number of those employees who are 457 visa
25
holders is greater than the number prescribed by the
26
regulations in relation to that sector; and
27
(c) the approval is granted on or after the commencement of this
28
section.
29
(2) Subsection (1) applies despite any term of the approval as to the
30
approval's duration.
31
6 Paragraph 140GBA(1)(a)
32
Repeal the paragraph, substitute:
33
Amendments Schedule 1
Amendment of the Migration Act 1958 Part 1
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
5
(a) the approved sponsor is either:
1
(i) in a class of sponsors prescribed by the regulations; or
2
(ii) a sponsor party for a work agreement; and
3
7 After paragraph 140GBA(3)(a)
4
Insert:
5
(aa) the Minister is satisfied that, as part of the labour market
6
testing:
7
(i) the nominated position was advertised for at least 4
8
weeks; and
9
(ii) the advertising was targeted in such a way that a
10
significant proportion of suitably qualified and
11
experienced Australian citizens or Australian permanent
12
residents would be likely to be informed about the
13
position; and
14
(iii) any skills or experience requirements set out in the
15
advertising were appropriate to the position; and
16
8 At the end of subsection 140GBA(4)
17
Add "The period must not start earlier than 4 months before the
18
nomination is received by the Minister.".
19
9 After subsection 140GBC(3)
20
Insert:
21
(3A) The approved sponsor is exempt from the requirement to satisfy
22
the labour market testing condition in section 140GBA if:
23
(a) the approved sponsor is a sponsor party for a work
24
agreement; and
25
(b) the nominated occupation is either of the following
26
occupations:
27
(i) Minister of Religion;
28
(ii) Religious Assistant.
29
10 Section 140GC
30
Repeal the section, substitute:
31
Schedule 1 Amendments
Part 1 Amendment of the Migration Act 1958
6
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
140GC Work agreements
1
(1) A work agreement is an agreement that meets the following
2
requirements:
3
(a) the agreement is between:
4
(i) the Commonwealth, as represented by the Minister, or
5
by the Minister and one or more other Ministers; and
6
(ii) a sponsor party;
7
(b) the agreement is a labour agreement that authorises the
8
recruitment, employment or engagement of services of
9
individuals who are intended to be employed or engaged as
10
457 visa holders in nominated occupations;
11
(c) the agreement nominates one or more occupations (the
12
nominated occupations) to which the agreement relates;
13
(d) the agreement nominates one or more projects or enterprises
14
(the nominated projects or enterprises) to which the
15
agreement relates;
16
(e) the agreement is in effect;
17
(f) any other requirements prescribed by the regulations.
18
Note:
A sponsor party is an approved sponsor and must satisfy sponsorship
19
obligations.
20
(2) The Minister must not enter into a work agreement on behalf of the
21
Commonwealth unless the Minister has had regard to the
22
following:
23
(a) the extent to which the work agreement will support existing
24
jobs for Australian citizens or Australian permanent
25
residents, or help create jobs for such individuals;
26
(b) the statement of labour market need for suitably qualified and
27
experienced 457 visa holders for the nominated occupations
28
that the sponsor party has given to the Minister;
29
(c) the training plan that the sponsor party has given to the
30
Minister;
31
(d) whether an appropriate proportion of the 457 visa holders
32
proposed to be employed or engaged by the sponsor party
33
under the work agreement will have appropriate
34
qualifications, knowledge and experience to train, or to assist
35
in training, Australian citizens or Australian permanent
36
residents in the nominated occupations;
37
Amendments Schedule 1
Amendment of the Migration Act 1958 Part 1
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
7
(e) the overseas worker support plan that the sponsor party has
1
given to the Minister;
2
(f) policy guidelines published by the Minister in accordance
3
with regulations made for the purposes of this paragraph;
4
(g) any other matters the Minister considers relevant.
5
(3) However, the Minister need not have regard to the matters
6
mentioned in paragraphs (2)(a) to (e) if the only nominated
7
occupations for the work agreement are the following:
8
(a) Minister of Religion;
9
(b) Religious Assistant.
10
Supporting local jobs
11
(4) For the purposes of paragraph (2)(a), the Minister must have regard
12
to the following:
13
(a) the likely impact of the work agreement on employment,
14
training and skills development opportunities in Australia;
15
(b) the number of jobs that are likely to be created by the work
16
agreement, directly or indirectly, over the term of the work
17
agreement;
18
(c) the proportion of those jobs that are likely to be offered to:
19
(i) Australian citizens or Australian permanent residents;
20
and
21
(ii) individuals who will be employed or engaged as 457
22
visa holders;
23
(d) the number of existing jobs that relate to the work agreement
24
that will be supported, either directly or indirectly, over the
25
term of the work agreement;
26
(e) the proportion of those jobs that are held by:
27
(i) Australian citizens or Australian permanent residents;
28
and
29
(ii) 457 visa holders;
30
(f) the condition of the national labour market, and any relevant
31
local or regional labour markets;
32
(g) the likely direct and indirect economic impact of the work
33
agreement;
34
(h) any other matter the Minister considers relevant.
35
Schedule 1 Amendments
Part 1 Amendment of the Migration Act 1958
8
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
Statement of labour market need
1
(5) For the purposes of paragraph (2)(b), the statement of labour
2
market need must include all of the following:
3
(a) analysis of the local, regional, national or industry labour
4
market that indicates shortages of Australian citizens or
5
Australian permanent residents with appropriate skills,
6
qualifications or experience for the nominated occupations;
7
(b) a profile of the sponsor party's workforce, or proposed
8
workforce, including:
9
(i) the number of Australian citizens or Australian
10
permanent residents currently employed or engaged, or
11
expected to be employed or engaged, by the sponsor
12
party; and
13
(ii) the number of 457 visa holders currently employed or
14
engaged, or expected to be employed or engaged, by the
15
sponsor party;
16
(c) a workforce strategy document including the following:
17
(i) the steps the sponsor party has taken, is taking or
18
proposes to take, to recruit Australian citizens or
19
Australian permanent residents for the nominated
20
projects or enterprises;
21
(ii) any relevant Commonwealth, State, Territory or local
22
government employment programs or services which
23
the sponsor party has used, or intends to use;
24
(iii) the steps the sponsor party has taken, is taking, or
25
proposes to take, to reduce its reliance on 457 visa
26
holders in the future.
27
Training plans
28
(6) For the purposes of paragraph (2)(c), the training plan may include
29
the following:
30
(a) the relevant occupations in which it is known, or anticipated,
31
that there is, or will be, a skills shortage;
32
(b) the training that will be offered by the sponsor party to
33
address those skills shortages, including:
34
(i) the percentage of the sponsor party's total expenditure
35
that is to be allocated to training the Australian citizens
36
Amendments Schedule 1
Amendment of the Migration Act 1958 Part 1
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
9
or Australian permanent residents employed by the
1
sponsor party; and
2
(ii) the percentage of the sponsor party's total expenditure
3
that is to be allocated to making payments to one or
4
more industry training funds that operate in the same
5
industry as the sponsor party; and
6
(iii) the number of apprenticeships, traineeships, graduate
7
employment places or other training programs that the
8
sponsor party will offer to Australian citizens or
9
Australian permanent residents;
10
(c) training targets for the period for which the work agreement
11
is to be in effect;
12
(d) how the targets will be implemented and monitored for the
13
period for which the work agreement is to be in effect.
14
Overseas worker support plan
15
(7) For the purposes of paragraph (2)(e), the overseas worker support
16
plan may provide details as to how the sponsor party will provide
17
457 visa holders with:
18
(a) workplace induction programs that are tailored to meet the
19
needs of 457 visa holders;
20
(b) information on workplace entitlements and rights, including
21
any relevant entitlements and rights the 457 visa holders may
22
have under the Fair Work Act 2009;
23
(c) contact details for relevant trade unions, employee
24
associations, migrant assistance organisations and workplace
25
and occupational health and safety regulators;
26
(d) information on local services, including health, emergency,
27
community, educational and welfare services;
28
(e) information on other support processes or measures that may
29
be relevant to 457 visa holders.
30
140GD Work agreements--imposition of conditions
31
(1) A party to a work agreement (other than the Minister) must comply
32
with any conditions imposed, in writing, in relation to a work
33
agreement under this section.
34
Schedule 1 Amendments
Part 1 Amendment of the Migration Act 1958
10
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
Minister may impose conditions
1
(2) The Minister may impose one or more of the following conditions
2
in relation to a work agreement:
3
(a) that a minimum number or percentage of Australian citizens
4
or Australian permanent residents be employed on one or
5
more nominated projects or enterprises;
6
(b) that no more than a specified number or percentage of 457
7
visa holders be employed, or have their services engaged, in
8
relation to one or more nominated projects or enterprises;
9
(c) any other condition that the Minister considers appropriate.
10
(3) To avoid doubt, a condition imposed under subsection (2) may be
11
expressed to apply:
12
(a) for the duration of the work agreement, or only in respect of
13
particular periods of the work agreement; and
14
(b) in relation to all nominated occupations under the work
15
agreement, or only in respect of a particular nominated
16
occupation.
17
Minister may vary or revoke conditions
18
(4) The Minister may vary or revoke a condition imposed under
19
subsection (2).
20
(5) If the Minister decides to vary or revoke a condition, the Minister
21
must, as soon as practicable, give the other party written notice
22
setting out:
23
(a) the decision; and
24
(b) the reasons for the decision; and
25
(c) the day on which the variation or revocation takes effect.
26
(6) A failure to comply with subsection (5) in relation to a decision
27
does not affect the validity of the decision.
28
140GE Work agreements--suspension and termination
29
(1) The Minister may suspend or terminate a work agreement if the
30
Minister believes that:
31
(a) a condition imposed in relation to the work agreement has
32
not been complied with; or
33
Amendments Schedule 1
Amendment of the Migration Act 1958 Part 1
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
11
(b) the work agreement is not supporting existing jobs for
1
Australian citizens or Australian permanent residents, or
2
helping to create jobs for such individuals; or
3
(c) there is no longer a shortage of Australian citizens or
4
Australian permanent residents with appropriate skills,
5
qualifications or experience for the nominated occupations;
6
or
7
(d) the sponsor party has failed to take, and is not proposing to
8
take, sufficient steps to:
9
(i) recruit Australian citizens or Australian permanent
10
residents for the nominated projects or enterprises; or
11
(ii) reduce its reliance on 457 visa holders in the future; or
12
(e) the sponsor party has failed to comply with the sponsor
13
party's training plan or overseas worker support plan; or
14
(f) there is an insufficient proportion of 457 visa holders
15
employed or engaged by the sponsor party under the work
16
agreement that have appropriate qualifications, knowledge
17
and experience to train, or to assist in training, Australian
18
citizens or Australian permanent residents in the nominated
19
occupations.
20
(2) As soon as practicable after deciding to suspend or terminate a
21
work agreement, the Minister must give the sponsor party to the
22
work agreement a written notice setting out:
23
(a) the decision; and
24
(b) the reasons for the decision; and
25
(c) the day on which the suspension or termination takes effect.
26
(3) A failure to comply with subsection (2) in relation to a decision
27
does not affect the validity of the decision.
28
11 At the end of Subdivision H of Division 3A of Part 2
29
Add:
30
140ZL Register of work agreements
31
(1) The Minister must keep a register of work agreements.
32
(2) The register must include the following details in relation to each
33
work agreement that has been entered into:
34
(a) the name of the sponsor party;
35
Schedule 1 Amendments
Part 1 Amendment of the Migration Act 1958
12
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
(b) the date on which the agreement was entered into;
1
(c) when the work agreement is in effect.
2
(3) The register must be publicly available on the Department's
3
website.
4
140ZM Report by Minister
5
(1) The Minister must prepare a report on the operation and impact of
6
work agreements during each financial year.
7
(2) The report must include the following:
8
(a) the number of work agreements in effect as at the end of the
9
financial year;
10
(b) the number of work agreements entered into by the Minister
11
during the financial year;
12
(c) the number of work agreements in effect during the financial
13
year that continued in effect from the previous financial year;
14
(d) the number of proposed work agreements that the Minister
15
declined to enter into during the financial year;
16
(e) the number of work agreements the Commonwealth entered
17
into in relation to which conditions have been imposed under
18
subsection 140GD(2);
19
(f) in relation to each work agreement that was in effect during
20
the financial year, the following:
21
(i) the conditions imposed in relation to the work
22
agreement under subsection 140GD(2) (if any);
23
(ii) if the work agreement varies a sponsorship obligation
24
that would otherwise be imposed on a sponsor party by
25
the regulations--the sponsorship obligation as varied
26
and the reasons the Minister agreed to the variation;
27
(iii) if the work agreement varies any criteria for 457 visa
28
holders under the regulations--the criteria as varied and
29
the reasons the Minister agreed to the variation;
30
(iv) the number of Australian citizens and Australian
31
permanent residents that have been employed during the
32
financial year by a sponsor party in relation to the
33
nominated projects or enterprises;
34
(v) the occupations of those Australian citizens or
35
Australian permanent residents;
36
Amendments Schedule 1
Amendment of the Migration Act 1958 Part 1
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
13
(vi) the number of 457 visa holders who are employed by
1
each sponsor party under the work agreement; and
2
(vii) the occupations of those visa holders;
3
(viii) information about any compliance or enforcement
4
activities undertaken during the financial year in relation
5
to the administration of this Division; and
6
(g) any other matter the Minister considers relevant.
7
(3) The Minister must table the report in each House of the Parliament
8
within 3 months of the end of the financial year.
9
Schedule 1 Amendments
Part 2 Amendment of the Migration Regulations 1994
14
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
Part 2--Amendment of the Migration
1
Regulations 1994
2
Migration Regulations 1994
3
12 Regulation 1.03 (definition of labour agreement)
4
Repeal the definition.
5
13 Regulations 2.76 and 2.76A
6
Repeal the regulations, substitute:
7
2.76A Policy guidelines for work agreements
8
(1) For paragraph 140GC(2)(f) of the Act, the Minister must publish,
9
on the Department's website, policy guidelines to be considered by
10
the Commonwealth in relation to the Commonwealth's negotiation
11
of the following agreements:
12
(a) work agreements;
13
(b) agreements, known as Projects Agreements, that relate to
14
work agreements.
15
(2) Without limiting subregulation (1), the policy guidelines must
16
include guidelines relating to the following:
17
(a) objectives and principles relating to the negotiation of the
18
agreements mentioned in that subregulation;
19
(b) eligibility requirements to be considered for such agreements;
20
(c) obligations to be required of parties entering into such
21
agreements.
22
14 After paragraph 457.223(2)(d) of Schedule 2
23
Insert:
24
(da) if the applicant would be required to hold a licence,
25
registration or membership that is mandatory to perform the
26
occupation in Australia--either:
27
(i) the applicant holds that licence, registration or
28
membership, and has given the Minister a copy of the
29
licence, registration or membership; or
30
Amendments Schedule 1
Amendment of the Migration Regulations 1994 Part 2
No. , 2016
Migration Amendment (Putting Local Workers First) Bill 2016
15
(ii) the applicant demonstrates that he or she can meet the
1
requirements to obtain that licence, registration or
2
membership; and
3
15 After paragraph 457.223(4)(e) of Schedule 2
4
Insert:
5
(eaa) if the applicant would be required to hold a licence,
6
registration or membership that is mandatory to perform the
7
occupation in Australia--either:
8
(i) the applicant holds that licence, registration or
9
membership, and has given the Minister a copy of the
10
licence, registration or membership; or
11
(ii) the applicant demonstrates that he or she can meet the
12
requirements to obtain that licence, registration or
13
membership; and
14
16 Subparagraphs 8107(3)(c)(ii) and (iii) of Schedule 8
15
Omit "90", substitute "60".
16
Schedule 1 Amendments
Part 3 Application and savings provisions
16
Migration Amendment (Putting Local Workers First) Bill 2016
No. , 2016
Part 3--Application and savings provisions
1
17 Application of amendments
2
The amendments made by this Schedule apply in relation to work
3
agreements entered into on or after the day on which this item
4
commences.
5
18 Saving of regulations
--approved sponsors required to
6
satisfy labour market testing condition
7
Regulations made under paragraph 140GBA(1)(a) of the Migration Act
8
1958 that were in force immediately before the commencement of this
9
Act continue in force (and may be dealt with) as if they had been made
10
under subparagraph 140GBA(1)(a)(i) of that Act as amended by this
11
Act.
12