Commonwealth Consolidated Acts Commonwealth Consolidated ActsScope
(1) This section applies to a nomination by a person, under section 140GB, if:
(a) the person is, or has applied to be, in a class of approved work sponsors prescribed by the regulations; and
(b) the person nominates:
(i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and
(ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and
(c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.
(2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.
Labour market testing condition
(3) The labour market testing condition is satisfied if:
(a) the Minister is satisfied that the person has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and
(aa) the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and
(b) the nomination is accompanied by:
(i) evidence in relation to that labour market testing of a kind determined under subsection (6A); and
(ii) 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 person--information about those redundancies or retrenchments; and
(d) having regard to that evidence, and information (if any), the Minister is satisfied that:
(i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and
(ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.
(4) For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation. The period must not start earlier than 4 months before the nomination is received by the Minister.
(4A) Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.
(5) For the purposes of paragraph (3)(aa), the Minister may, by legislative instrument, determine the manner in which labour market testing in relation to a nominated position must be undertaken.
(6) Without limiting subsection (5), the Minister may determine the following:
(a) the language to be used for any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved work sponsor;
(b) the method of any such advertising;
(c) the period during which any such advertising must occur;
(d) the duration of any such advertising.
(6AA) The Minister must not make a determination under subsection (5) unless the Minister is reasonably satisfied that any advertising of the position undertaken in the determined manner:
(a) will be 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
(b) will set out any skills or experience requirements that are appropriate to the position.
(6AB) A duration determined for the purposes of paragraph (6)(d) must be at least 4 weeks.
(6A) For the purposes of subparagraph (3)(b)(i), the Minister may, by legislative instrument, determine kinds of evidence that must accompany a nomination.
(6B) Without limiting subsection (6A), the Minister may determine that a copy of any advertising mentioned in subsection (6) must accompany a nomination.
(6C) Without limiting subsection (5) or (6A), the Minister may prescribe different manners or evidence for different nominated positions or classes of nominated positions.
(7) In this section:
"associated entity" has the same meaning as in Part 2A of the regulations.
"Australian permanent resident" means an Australian permanent resident within the meaning of the regulations.
"eligible temporary visa holder" : a person is an eligible temporary visa holder in relation to a nomination by another person if, at the time when the nomination is made:
(a) the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and
(b) the person is employed in the agricultural sector by the other person (or an associated entity of the other person); and
(c) the temporary visa does not prohibit the person from performing that employment.
"labour market testing" , in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.