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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (PUTTING LOCAL WORKERS FIRST) BILL 2016
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Member for Maribyrnong
The Hon Bill Shorten MP
MIGRATION AMENDMENT (PUTTING LOCAL WORKERS FIRST) BILL 2016
OUTLINE
This Private Members Bill amends the Migration Act 1958 to introduce a range of
measures to make Australia's temporary work visa system fairer.
The amendments introduce a series of safeguards into the Australia's temporary skilled
migration program to improve employment opportunities for Australian citizens and
permanent residents, promote the welfare of temporary migrant workers, and facilitate
compliance with occupational licensing and workplace safety regulations.
The amendments will put in place stronger safeguards to ensure that Australian employers
seek to hire local workers first, with temporary work visas used to fill genuine skills
shortages rather than displace local workers and undercut wages and conditions.
Australians benefit from a productive, growing and open economy, and having skilled
workers helps support our economic growth. But Australian workers should not be
excluded from the employment market because employers can use temporary work visas
as an alternative to local hiring.
Under these reforms, Labour Market Testing will be strengthened requiring employers
nominating 457 visa workers under Labour Agreements, and as standard business
sponsors, to meet stronger labour market testing requirements under the Migration Act,
consistent with Australia's international trade obligations.
The Bill will require that sponsors in specified sectors who have more than a set proportion
of their total workforce made up of 457 visa holders must employ these guest workers
under a Labour Agreement instead of being a standard business sponsor.
The Bill will introduce an Australian Jobs Test that requires employers to demonstrate their
contribution to local employment and skills development as part of their application to
sponsor temporary workers. Where an employer does not meet the Australian Jobs Test,
or fails to deliver on their commitments made through it at the time of application, the
Minister for Immigration will be empowered to deny or remove their status as an approved
sponsor of 457 workers.
The Australian Jobs Test will be an additional requirement on top of the need to conduct
labour market testing for each individual position, and not act as a substitute for it.
The amendments in this bill reflect the core premise of Australia's temporary skilled
migration program, which is that it provides a vehicle for responding to skills shortages in
the domestic labour market rather than for bypassing suitably qualified and experienced
local workers.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act, when enacted, to be cited as the Migration Amendment
(Putting Local Workers First) Act 2016.
Clause 2 - Commencement
This clause provides for the commencement of the Act on the day after the Act receives
the Royal Assent. 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.
Clause 3 - Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in
the applicable items in the Schedule concerned, and any other item in a Schedule to this
Act has effect according to its terms.
Part 1--Amendment of the Migration Act 1958
Item 1 - Subsection 5(1)
This item inserts the definition of a 457 visa holder as a holder of a visa referred to in the
regulations as a Subclass 457 (Temporary Work (Skilled)) visa.
Item 2 - Subsection 5(1) (subparagraph (a)(ii) of the definition of approved sponsor)
This item is a consequential amendment and ensures that every person will cease to be
an approved sponsor if the approval ceases under 140GAA.
Item 3 - Subsection 5(1)
This item inserts and amends definitions that are relevant to the implementation of the
amendments to the Act.
Item 4 - Subsection 5(1) (definition of work agreement)
This item repeals the definition of a Work Agreement and substitutes it with the meaning
given under 140GC.
Item 5 - After section 140GA
This item ensures that the amendments made in this Bill will not affect existing approvals.
Item 6 - Paragraph 140GBA(1)(a)
This item repeals the existing paragraph and substitutes it with a requirement that all
parties to Work Agreements perform Labor Market Testing and allows regulations to
prescribe additional classes of sponsors.
Item 7 - After paragraph 140GBA(3)(a)
This item relates to employment advertising as part of the Labour Market Testing and
mandatory requirements for all jobs to be advertised as part of Labor Market Testing
obligations. It places a requirement that jobs be advertised for a minimum of four weeks
and bans job advertisements that target only overseas workers or specified visa class
workers to the exclusion of Australian citizens and permanent residents. This item rules
out job advertising that sets unrealistic and unwarranted skills and experience
requirements for vacant positions, with the effect of excluding otherwise suitable Australian
applicants.
Item 8 - At the end of subsection 140GBA(4)
This item adds a requirement for Labor Market Testing to have been conducted no more
than 4 months before the nomination of a 457 visa worker.
Item 9 - After subsection 140GBC(3)
This item provides an exemption from Labour Market Testing if the nominated occupation
is a Minister of Religion or Religious Assistant.
Item 10 -Section 140GC
This item repeals section 140GC and substitutes it with a revised definition of a Work
Agreement and other requirements the Minister must take into account relating to
supporting local jobs, statement of labour market needs, training plans and overseas
worker support plans.
This item ensures the Minister must not enter into a work agreement without regard to:
the extent to which the work agreement will support existing jobs for Australian
citizens or Australian permanent residents, or help create jobs for those individuals;
the statement of labour market need for suitably qualified and experienced 457 visa
holders for the nominated occupations;
the training plan;
whether an appropriate proportion of the 457 visa holders proposed to be employed
or engaged under the work agreement will have appropriate qualifications,
knowledge and experience to train, or to assist in training, Australian citizens or
Australian permanent residents in the nominated occupations;
the overseas worker support plan that has been given to the Minister;
policy guidelines published by the Minister in accordance with regulations made for
the purposes of this paragraph.
Item 11 - At the end of Subdivision H of Division 3A of Part 2
This item establishes a public register of Work Agreements and requires the Minister to
prepare a report on the operation and impact of Work Agreements during each financial
year. That report must table in each House of the Parliament within 3 months of the end of
the financial year.
Part 2--Amendment of the Migration Regulations 1994
Item 12 - Regulation 1.03 (definition of labour agreement)
This item repeals the definition of a Labour Agreement from the regulations as these
amendments will see the definition now included in the Act.
Item 13 - Regulations 2.76 and 2.76A
This item requires the Minister to have regard to the policy guidelines currently provides for
under subregulation 2.76A(3) of the regulations.
Item 14 - After paragraph 457.223(2)(d) of Schedule 2
This item provides for a requirement that where trades or professional licencing is required
in Australia to fulfil a role, applicants must either hold the relevant licence when applying
for a visa, or undertake a mandatory skills assessment to demonstrate that they meet the
requirements for obtaining a licence.
Item 15 - After paragraph 457.223(4)(e) of Schedule 2
This item provides for a requirement that applicants either hold the relevant licence when
applying for a visa, or undertake a mandatory skills assessment to demonstrate that they
meet the requirements for obtaining a licence.
Item 16 - Subparagraphs 8107(3)(c)(i) and (ii) of Schedule 8
This item requires applicants not holding a licence to obtain the licence within 60 days of
arriving in Australia.
Part 3--Application and savings provisions
Item 17 - Application of amendments
This item relates to amendments made by this Schedule and their application in relation to
Work Agreements entered into on or after the day on which this item commences.
Item 18 - Saving of regulations--approved sponsors required to satisfy labour
market testing condition
This item relates to regulations made under paragraph 140GBA(1)(a) of the Migration Act
1958 that were in force immediately before the commencement of this Act continue in
force (and may be dealt with) as if they had been made under
subparagraph 140GBA(1)(a)(i) of that Act as amended by this Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
MIGRATION AMENDMENT (PUTTING LOCAL WORKERS FIRST) BILL 2016
These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The amendments introduce safeguards into Australia's temporary skilled migration
program to improve employment opportunities for Australian citizens and permanent
residents, promote the welfare of temporary migrant workers, and to facilitate compliance
with occupational licensing and workplace safety regulation.
The amendments reflect one of the premises of Australia's temporary skilled migration
program, which is that it provides a vehicle for responding to skills shortages in the
domestic labour market rather than for bypassing suitably qualified and experienced local
workers.
The new safeguards will ensure this premise is not undermined by Work Agreements
entered into under the Act or by Australia's international trade agreements. This will
contribute to the policy objective that international trade agreements should enhance
rather than constrain local economic and employment opportunities.
Human rights implications
The amendments engage the following human rights:
• the right to work; and
• the right to just and favourable conditions of work.
The right to work
The amendments engage the right to work as contained in Article 6 of the International
Covenant on Economic, Social and Cultural Rights. Article 6(1) provides that parties to the
Covenant recognise the right to work, including the right of everyone to the opportunity to
gain their living by work which they freely choose or accept, and will take appropriate steps
to safeguard this right.
The amendments engage this right by strengthening labour market safeguards in
Australia's temporary skilled migration system which will require opportunities to work to
be offered initially to Australian citizens or permanent residents.
Australia's temporary skilled migration system also engages the right to work of overseas
citizens by providing a framework for the use of temporary skilled migration where there
are skills shortages in the Australian labour market.
The right to just and favourable conditions of work
The amendments engage the right to just and favourable conditions of work as contained
in Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7
provides that parties to the Covenant recognize the right of everyone to the enjoyment of
just and favourable conditions of work which ensure, amongst other things, fair wages and
safe and healthy working conditions.
The amendments engage this right by making new arrangements for setting the level of
the temporary skilled migration income threshold, by requiring employers entering Work
Agreements for the use of temporary skilled migrants to adopt overseas worker support
plans and by strengthening compliance with Australia's workplace skills and safety
regulation.
Conclusion
The amendments are compatible with human rights because they engage and advance
the human rights to work and to just and favourable conditions of work.
The Hon Bill Shorten MP