According to the Explanatory statement accompanying the amendment; from 23rd of November, 2013 onwards companies intending to sponsor 457 workers will have 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;
The new subsection 140GBA(3) of the Migration Act provides that the labour market testing condition is satisfied if:
· the Minister is satisfied that the approved 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 occupation; and
· the nomination is accompanied by:
o evidence in relation to that labour market testing (see subsection 140GBA(5) and (6)); and
o 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 - information about those redundancies or retrenchments; and
· having regard to that evidence and information (if any), the Minister is satisfied that:
o a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and
o a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.
New subsection 140GBA(5) of the Migration Act provides the following regarding the evidence in relation to labour market testing :
· must include the 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 (see also subsection 140GBA(6)); and
· may also include other evidence, such as:
o copies of, or references to, any research released in the previous 4 months relating to labour market trends generally and in relation to the nominated occupation; or
o expressions of support from Commonwealth, State and Territory government authorities with responsibility for employment matters; or
o any other type of evidence determined by the Minister by legislative instrument.
The above requirements have the potential to impact a number of business sectors, some professional and management occupations would be exempt, but they would be required to be explicitly listed in a legislative instrument as being exempt.
The full impact of any Labour Market Testing will only be known several months into its operation.
Thanks to Karl Konrad's Immigration News for this information.
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