On 6 June 2013, the Migration Amendment (Temporary Sponsored Visas) Bill
2013 (Bill) was introduced by the Minister for Immigration and Citizenship,
the Hon Brendan O'Connor MP (Minister).
On 18 June 2013, the Senate referred the provisions of the Bill to the Senate
Legal and Constitutional Affairs Legislation Committee (committee) for inquiry
and report by 20 August 2013.
In order to assist the parliament's timely consideration of the Bill, the
committee decided to present its report on 24 June 2013.
Purpose of the Bill
According to the Explanatory Memorandum (EM), the Bill seeks to:
[Amend] 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 Visa Program (of
which Subclass 457 visas are a part). The Bill, together with proposed
amendments to the Migration Regulations 1994 (the Migration
Regulations), presents a comprehensive package of reform which would balance
the interests of Australian workers with the need to strengthen protections for
In his Second Reading Speech, the Minister set out the government's
concerns regarding the current operation of the subclass 457 visa protection
[T]he subclass 457 visa plays an important role in allowing
employers to address skill shortages when skilled local labour is unavailable.
It is intended as a vehicle to allow employers to quickly supplement the
Australian labour market, including the use of enterprise migration agreements
and regional migration agreements, where a genuine skill shortage exists...
The use of the subclass 457 visa program has been growing
strongly in recent years...
Many growing industries, including those connected with the
resources boom, such as mining, as well as non-resource-sector users of the
program, such as health care and information and communications technology,
accounted for a large portion, over half, of all subclass 457 visa grants in
However, strong growth has also been recorded in industries
in which employment has fallen recently, such as accommodation and food
service, and retail trade.
It concerns the government that, at a time when the labour
market has been flattening and some sectors and regions have experienced
lay-offs and increased unemployment, the subclass 457 program has continued to
Coupled with this strong growth is a tendency for some
employers to source foreign labour through the subclass 457 program without
regard to the Australian domestic labour force.
These trends highlight that current requirements do not
commit sponsors to using the subclass 457 program as a supplement to, rather
than a substitute for, the domestic labour force.
Overview of the Bill
The Bill has six schedules. According to the EM, the Bill would amend
the Migration Act to:
- reinforce the purpose of Division 3A of Part 2 of the Migration
Act relating to sponsorship;
- 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;
- provide the evidence for labour market testing which is to
accompany an application for a nomination;
- 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);
- in relation to exemptions from labour market testing, provision
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
- 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
- clarify that entry to premises under the Fair Work Act 2009
will enable a Fair Work Inspector to exercise powers under the Migration Act;
- 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 majority of submissions were concerned with the provisions in
relation to labour market testing conditions, which are set out in Schedule 2.
Labour market testing (Schedule 2)
In his Second Reading Speech, the Minister noted that the government
'will seek assurance from employers that they are only utilising the 457 visa
program in circumstances where there is a genuine skills shortage in
To enable this outcome, Schedule 2 of the Bill introduces a requirement that
sponsors must undertake labour market testing in relation to nominated
occupations in a manner consistent with Australia's relevant international
trade obligations (item 2 of
Schedule 2, proposed new subsection 140GBA(1)).
The labour market testing conditions are satisfied if:
- the Minister is satisfied that the sponsor has undertaken labour
market testing in relation to the nominated position within a period determined
by the Minister, by legislative instrument, in relation to the nominated
- the nomination is accompanied by evidence in relation to that
labour market testing; and
- having regard to that evidence, the Minister is satisfied that a
suitably qualified and experienced Australian citizen or Australian permanent
resident is not readily available to fill the nominated position.
In relation to the period of labour market testing required, the
It is proposed that the labour market testing requirement
will initially require a sponsor to demonstrate that they have sought to find a
suitably qualified Australian citizen or Australian permanent resident within
six months prior to submission of an application for nomination approval.
The evidence of labour market testing to accompany the nomination must
include one or more of the following:
- information about the approved sponsor's attempts to recruit
suitably qualified and experienced Australian citizens or Australian permanent
residents to the position and any other similar positions;
- copies of, or references to, any research released in the
previous six months relating to labour market trends generally and in relation
to the nominated occupation;
expressions of support from Commonwealth, State or Territory
government authorities with responsibility for employment matters; or
- any other type of evidence determined by the Minister, by
The Bill contains two exemptions to the requirement for labour market
- a major disaster exemption (proposed new section 140GBB, item 2
of Schedule 2); and
- a skill and occupation exemption (proposed new section 140GBC,
item 2 of Schedule 2).
The skill and occupation exemption provides that a sponsor is exempt
from the requirement to satisfy the labour market testing condition in proposed
new section 140GBA if:
- either or both of the following are required for the nominated position,
in relation to the nominated occupation: a relevant bachelor degree or higher
qualification, or five years or more of relevant experience; and the Minister,
by way of legislative instrument, has specified that the nominated occupation
is exempt (proposed new subsection 140GBC(2), item 2 of Schedule 2);
- either or both of the following are required for the nominated
position, in relation to the nominated occupation: a relevant associate degree,
advanced diploma or diploma covered by the Australian Qualifications Framework,
or three years or more of relevant experience; and the Minister, by way of
legislative instrument, has specified that the nominated occupation is exempt
(proposed new paragraph 140GBC(3), item 2 of Schedule 2).
Conduct of the inquiry
Details of the inquiry, including links to the Bill and associated
documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon.
The committee also wrote to over 80 organisations and individuals, inviting
submissions by 20 June 2013. Submissions continued to be accepted
after that date.
The committee received 24 submissions, which are listed at
Appendix 1. All public submissions were published on the committee's
The committee held a public hearing on 21 June 2013 at
Parliament House in Canberra. A list of witnesses who appeared at the hearing
is at Appendix 2, and the Hansard transcript is available through
the committee's website.
The committee thanks those organisations and individuals who made
submissions and gave evidence at the public hearing.
Note on references
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard transcript.
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