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Note: This table relates only to the provisions of this Act as originally enacted.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Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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