Commencement: 29 June 2013 and 30 June 2013
The Migration Amendment (Temporary Sponsored Visas) Act 2013 (the Amending Act) amends the Migration Act 1958 (the Migration Act) to enhance the Government's ability to deter sponsor behaviour which is inconsistent with the policy intent of the temporary sponsored work visa program (of which subclass 457 visas are a part). The Amending Act, together with amendments to the Migration Regulations 1994 (the Migration Regulations), presents a comprehensive package of reform which would balance the interests of the Australian workers with the need to strengthen protections for overseas workers.
The Amending Act received the Royal Assent on 29 June 2013.
The amendments in Schedule 1 (Sponsorship visas: preliminary), Schedule 3 (Subclass 457 visa conditions), Schedule 4 (Sponsorship obligations) and Schedule 6 (Sponsorship inspector powers) commenced on 30 June 2013 (the day after the Royal Assent).
The amendments in Part 1 of Schedule 5 (Enforceable undertakings by sponsors) commenced on 29 June 2013 (the day of the Royal Assent). The amendments in Part 2 of Schedule 5 (Amendments contingent on the commencement of Part 6 of the Regulatory Powers (Standard Provisions) Act 2013) commence on the later of:
- 30 June 2013 (the start of the day after this Act receives the Royal Assent), and
- immediately after the commencement of Part 6 of the Regulatory Powers (Standard Provisions) Act 2013.
The amendments in Schedule 2 (Labour market testing) will commence on a day fixed by Proclamation (or if not proclaimed within the period of 6 months beginning on the day of the Royal Assent, they commence on the day after the end of that period).
The Migration Act is amended by the Amending Act to:
- reinforce the purpose of Division 3A of Part 2 of the Migration Act relating to sponsorship
- require the Minister to take all reasonable steps to ensure that, at all times, there is in existence a council that is known as the Ministerial Advisory Council on Skilled Migration, established under the executive power of the Commonwealth, which includes representatives of unions, industry and State and Territory governments and other members (if any) nominated by the Minister and meets at least quarterly
- provides that without limiting its functions, the Ministerial Advisory Council on Skilled Migration is to provide advice to the Minister in relation to the temporary sponsored work visa program
- require prescribed classes of sponsors to undertake labour market testing in relation to a nominated occupation, in a manner consistent with Australia's international trade obligations
- require the Minister to be satisfied that a suitably qualified Australian citizen, Australian permanent resident or eligible temporary visa holder is not readily available to fill the nominated position
- provide the evidence required in relation to labour market testing which is to accompany an application for a nomination
- provide that 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, require the approved sponsor to provide information about those redundancies or retrenchments with the nomination
- ensure that if there have been redundancies or retrenchments, the labour market testing must be undertaken after those redundancies and retrenchments
- clarify 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 claim to have tested the labour market, 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
- provide exemptions from labour market testing in circumstances where there has been a major disaster, or the skill level of the nominated occupation is equivalent to Skill level 1 or Skill Level 2 as provided for in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) (except for protected qualifications or protected experience)
- in relation to exemptions from labour market testing- provide for the Minister, by way of legislative instrument, to specify the occupations and for such legislative instruments to be subject to disallowance by either House of the Parliament
- enshrine the kinds of sponsorship obligations for which the Minister must take reasonable steps to ensure are prescribed in the Migration Regulations
- enhance the enforcement framework in relation to sponsorship to include enforceable undertakings between the Minister and an approved sponsor or former approved sponsor and the enforcement of those undertakings
- empower Fair Work Inspectors to be Inspectors under the Migration Act
- clarify that entry to premises under the Fair Work Act 2009 will enable a Fair Work Inspector to exercise powers under the Migration Act, and
- provide that an additional purpose for exercising inspector powers under the Migration Act is to determine whether a person who is or was an approved sponsor has contravened a civil penalty provision in or committed an offence against relevant provisions of the Migration Act relating to work (employer sanctions provisions).
The Amending Act also amends the Migration Regulations to:
- prescribe standard business sponsors as the class of sponsor which is required to undertake labour market testing in relation to a nominated occupation, and
- extend the period in which a Subclass 457 visa holder subject to visa condition 8107 can seek new sponsored employment from 28 consecutive days to 90 consecutive days.
There are also saving and application provisions for the amendments made by Schedule 2, Schedule 3, Schedule 4, Schedule 5 and Schedule 6. Please refer to the Amending Act for further details.
The Amending Act provides for contingent amendments to the Migration Act in the event of the commencement of Part 6 of the Regulatory Powers (Standard Provisions) Act 2013 (the Regulatory Powers Act). Part 6 of the Regulatory Powers Act creates a framework for the acceptance and enforcement of undertakings relating to compliance with provisions.
As at 5 August 2013, the Regulatory Powers (Standard Provisions) Bill 2013 had not yet passed the Senate.
The following provisions of the Migration Act are amended:
- Subsection 5(1), definition of appointed inspector, is inserted
- Subsection 5(1), definition of Fair Work Inspector, is inserted
- Subsection 5(1), definition of inspector, is inserted
- Section 140AA, is inserted
- Section 140AB, is inserted
- Subsection 140GB(2), is repealed and substituted
- Section 140GBA, is inserted
- Section 140GBB, is inserted
- Section 140GBC, is inserted
- Section 140H (heading), is repealed and substituted
- Subsection140H(1) (heading), is inserted
- Subsection 140H(1) (note), is repealed
- Subsection 140H(2) (heading), is inserted
- Subsection 140H(4) (heading), is inserted
- Section 140HA, is inserted
- Subparagraph 140K(1)(a)(iv), is inserted
- Subparagraph 140K(1)(a)(v), is inserted
- Paragraph 140K(2)(a), is amended
- Subparagraph 140K(2)(a)(iii), is inserted
- Subparagraph 140K(2)(a)(iv), is inserted
- Section 140RA, is inserted
- Section 140RB, is inserted
- Subdivision F of Division 3A of Part 2 (heading), is repealed and substituted
- Section 140UA, is inserted
- Subsection 140V(1A), is inserted
- Subsection 140V(2), is amended
- Subsection 140V(3), is amended
- Subsections 140V(4) and 140V(5), are inserted
- Subsection 140W(1A) (and heading), is inserted
- Subsection 140W(1) (heading), is repealed and substituted
- Subsection 140W(1), is amended
- Subsection 140W(2) (heading), is repealed
- Subsection 140W(2), is amended
- Paragraph 140W(4)(a), is amended
- Paragraph 140X(a), is amended
- Paragraph 140X(aa), is inserted
- Section 140XC, is amended
- Subsection 140XC(2), is inserted
- Subsection 140XD(1), is repealed and substituted.
The following provisions of the Migration Regulations are amended:
- Regulation 2.72AA, is inserted
- Schedule 8, paragraphs 8107(3)(b) and 8107(3B)(b), is amended.
Delayed Commencement of Labour Market Testing: The amendments relating to Labour Market Testing are proposed to commence in November 2013, on a date yet to be determined. Delayed implementation will enable appropriate consultations with relevant agencies, and to provide sponsors time to understand the changes and meet the new requirements.
Related amendments to the Migration Regulations
There are associated amendments to the Migration Regulations relating to subclass 457 visas. Please refer to the Notice of Legislative Change for the:
- Amendments to the Migration Regulations 1994 to require certain applications relating to the temporary skilled migration program to be lodged electronically, and
- Amendments to the Migration Regulations 1994 to strengthen the integrity of the Temporary Skilled Visa Program.
These amendments commenced on 1 July 2013.
Application of the new provisions
Subclass 457 visa conditions
The amendment of the Migration Regulations made by Schedule 3 applies in relation to a visa subject to condition 8107:
- that is in force on or after 30 June 2013, and
- with effect from the time the visa was granted, whether before, on or after 30 June 2013.
Enforceable undertakings by sponsors
The amendments of the Migration Act made by Part 1 of Schedule 5 apply in relation to a sponsorship obligation whether the obligation arose before, on or after 29 June 2013.
Sponsorship inspector powers
The amendments of the Migration Act made by Part 1 of Schedule 6 apply in relation to:
- a person who is a Fair Work Inspector, whether the person became such an inspector before, on or after 30 June 2013, and
- the exercise of a power, or the performance of a function, by an inspector under the Migration Act on or after 30 June 2013, and
- the exercise of a compliance power by a Fair Work Inspector under Subdivision D of Division 3 of Part 5-2 of the Fair Work Act 2009 on or after 30 June 2013.
The amendments of the Migration Act made by Part 1 of Schedule 6 apply in relation to the powers and functions mentioned in the second and third dot points above whether they are exercised or performed in relation to conduct, an event or circumstances that occurred or started occurring before, on or after 30 June 2013.
Form 1196 (Internet) will be amended to coincide with the commencement of the Labour Market Testing legislative changes.
PAM instructions affected by this change are being updated.