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MIGRATION AMENDMENT (CLARIFYING SUBCLASS 457 REQUIREMENTS) REGULATION 2015 (SLI NO 185 OF 2015)

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 185, 2015

 

Issued by the Minister for Immigration and Border Protection

 

Migration Act 1958

 

Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015

 

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.

 

Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

In addition, regulations may be made pursuant to the provisions of the Migration Act listed in Attachment A.

 

The purpose of the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 (the Regulation) is to amend the Migration Regulations 1994 (the Principal Regulations) to clarify policy in relation to the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) programme.

 

In particular, the Regulation amends the Principal Regulations to:

 

*         give statutory recognition to an existing policy requirement by requiring labour market testing by employers seeking permission, via a work agreement, to sponsor workers under the Subclass 457 programme;

 

*         require the Minister to publish guidelines relating to the Commonwealth's policy and procedures in relation to work agreements and project agreements;

 

*         clarify that the requirement to provide terms and conditions of employment to Subclass 457 visa holders, which are equivalent to those provided to Australian workers, is applicable in cases where the terms and conditions of the Australian workers are contained in an enterprise agreement under the Fair Work Act 2009; and

*         clarify the operation of visa conditions relating to requirements for visa holders to hold occupational licences, memberships or registrations, and to commence work within 90 days from arrival in Australia or visa grant.

 

A Statement of Compatibility with Human Rights (the Statement) has been completed, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulation is compatible with human rights. A copy of the Statement is at Attachment B.

 

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments made by the Regulation. The OBPR considers that the amendments are minor in nature and do not require a Regulation Impact Statement. The OBPR consultation reference is 19889.

 

Consultations in relation to the amendments have been undertaken with the Federal Opposition, via the Shadow Minister for Trade and Investment. Consultations were also held with Attorney-General's Department and with the Department of Foreign Affairs and Trade. The Department of Employment was also consulted in relation to matters relevant to that portfolio.

 

The Principal Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

 

Details of the Regulation are set out in Attachment C.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulation commences on 1 December 2015


ATTACHMENT A

 

AUTHORISING PROVISIONS

 

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

 

In particular, item 2 of Schedule 1 to the Regulation relies upon subsection 504(1) of the Migration Act.

 

In addition, the following provisions of the Migration Act may apply:

 

*         subsection 41(1) which provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions;

 

*         subsection 41(2) which provides, in part, that the regulations may provide that a visa, or visas of a specified class, are subject to a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing any work, or work other than specified work, or work of a specified kind;

 

*         subsection 140GB(1) which provides, in part, that an approved sponsor may nominate an applicant, or a proposed applicant, for a visa of a prescribed class (however described), in relation to the applicant or proposed applicant's proposed occupation;

 

*         subsection 140GB(2) which provides, in part, that the Minister must approve an approved sponsor's nomination if prescribed criteria are satisfied; and

 

*         section 140GC which provides that, for the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy.

 

 

 

 

 

 

 

 

 


 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The purpose of the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 (the Regulation) is to clarify the operation of the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) programme, particularly in relation to work agreements and project agreements.

The  Regulation amends the Migration Regulation 1994 (the Principal Regulations) to elevate current policy requirements into the  Principal Regulations and clarify some existing provisions, in particular to:

*         provide that the terms and conditions of employment to be given to a Subclass 457 visa holder employed by a "standard business sponsor"  are to be equal to those in an enterprise agreement under the Fair Work Act 2009, if the employer also employs Australian citizens or permanent residents under an enterprise agreement;

*         provide that the Commonwealth cannot enter into a work agreement in relation to the employment of Subclass 457 visa holders unless the other party to the work agreement has made recent and genuine efforts to recruit Australian citizens or permanent residents to meet the requirement for employees;

*         provide exemptions from labour market testing for proposed workplace agreements relating to the recruitment of for Ministers of Religion and Religious Assistants;

*         require the Minister for Immigration and Border Protection to publish policy guidelines concerning work agreements and project agreements on the Departmental website; and

*         amend visa condition 8107 to clarify the obligations of  Subclass 457 visa holders to obtain and hold mandatory licences or registration for performance of their occupation, and commence work within 90 days from arrival in Australia or visa grant.

The Regulation is designed to reinforce the Government's intention that Australians will have priority in the labour market and that overseas workers will only be recruited under work agreements in circumstances where suitably qualified local workers are not available. These requirements already exist in policy and the elevation of the requirements into the regulations provides greater transparency. Further transparency will be achieved by requiring policy guidelines to be published on the departmental website.

The Regulation also  strengthens the protection of visa holders and the Australian public by clarifying the requirement for visa holders to obtain and continue to hold any mandatory licences, registrations or memberships while  working in Australia.

Human rights implications

Right to Work

The amendments made by the Regulation prioritise the employment opportunities of Australian citizens and permanent residents and are relevant to the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 6 provides:

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

In relation to Australian citizens and permanent residents, the measure clearly supports the Australian Government's recognition of the right to work, by according preference to those seeking an opportunity to work. The United Nation Committee on Economic, Social and Cultural Rights (UNCESCR), in its General Comment on Article 6 (E/C.12/GC/18) has stated:

[4]        The right to work, as guaranteed in the ICESCR, affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.

[6]        The right to work is an individual right that belongs to each person and is at the same time a collective right. It encompasses all forms of work, whether independent work or dependent wage-paid work. The right to work should not be understood as an absolute and unconditional right to obtain employment.  

As a priority is accorded to Australian citizens and permanent residents in the labour market testing process, this means that foreign nationals who are seeking temporary employment in Australia would not able to be sponsored under a work agreement until the labour market testing process is completed.

It is the long standing position of the Australian Government that an authority from the Australian Government needs to be granted before a non-citizen is permitted to work. This authority and associated "work rights" are attached to certain types of visas, including the Subclass 457 visa. A person is not permitted to work in Australia unless work rights have been granted, and merely by arriving lawfully in Australia does not entitle a person to work rights in the absence of a visa with work rights.

The work rights of temporary non-citizens may be conditioned or limited on a case by case basis. The amendments ensure that Australian citizens and permanent residents can seek employment opportunities before a foreign national seeking to come to Australia on a temporary basis can come to Australia on a Subclass 457 visa under a work agreement.

Non-discrimination

The amendments engage Article 2.1 of the ICCPR and Article 2.2 of the ICESCR which guarantee the rights enshrined in the Covenants to all people without discrimination.

Article 2.1 of the ICCPR states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2.2 of the ICESCR states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The General Comment on ICESCR (E/C.12/GC/18) relevantly provides:

[18]      The principle of non-discrimination as set out in article 2.2 of the Covenant [ ... ] should apply in relation to employment opportunities for migrant workers and their families. In this regard the Committee underlines the need for national plans of action to be devised to respect and promote such principles by all appropriate measures, legislative or otherwise".

The amendments made by the Regulation comply with the principle of non-discrimination in that they reinforce that the terms and conditions of employment given to visa holders will be no less favourable than that given to Australian citizens and permanent residents, including terms and conditions in any applicable enterprise agreement.

The  amendments made by the Regulation provide for differential treatment in terms of access to work agreements being conditioned upon labour market testing. In its General Comment on Article 2 (E/C.12/GC/20), UNCESCR has stated:

[13]      Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.

Article 4 of ICESCR provides that the State may subject the rights enunciated in the ICESCR:

... only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in democratic society.

The object of the Migration Act 1958 (the Migration Act) is to "regulate, in the national interest, the coming into, and presence in, Australia of non-citizens". In that sense the purpose of the Migration Act and the Principal Regulations is to differentiate on the basis of nationality between non-citizens and citizens. Most nation-states differentiate on the basis of nationality in some form to regulate the right to work. The UN Human Rights Committee has recognised in the ICCPR context that:

"The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory [ ... ] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment" (CCPR General Comment 15, 11 April 1986).

The limitations imposed by the labour market testing regime are legitimate and justified by Article 4, for the principle reason that they are for the "purpose of promoting the general welfare in a democratic society". In other words, the measure will ensure that persons who are in Australia permanently are given the opportunity to seek work before those seeking to work and live in Australia only on a temporary basis. Such a limitation, noting the discussion in relation to work rights in Article 6 above, is permissible.

As the  amendments made by the Regulation seek to accord priority to Australian citizens and permanent residents, the question is whether this exclusion amounts to discrimination. Arguably the measure is targeted to national origin (i.e. origin in countries other than Australia). However, for the reasons stated above, in order to give effect to Article 6 and Article 4 of ICESCR in relation to Australian citizens and permanent residents, the measure is legitimate, reasonable and proportionate. Furthermore, it does not seek to preclude foreign nationals from entering and working temporarily in Australia, but rather conditions that ability with the reasonable and proportionate measures in the amendments.

Conditions of work

The amendments made by the Regulation engage and are consistent with Article 7 of ICESCR, which provides that:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

The  amendments made by the Regulation elevate requirements to provide equal terms and conditions to Australian workers and to visa holders from policy into the Regulations. In addition, they require that if Australians are employed under an enterprise agreement under the Fair Work Act 2009, the terms and conditions of the visa holder must reflect that enterprise agreement.

Conclusion

The amendments are compatible with human rights in so far as any limitations upon the right to work in Article 6 of the ICESCR comply with the requirements in Article 4 of the ICESCR. Further, although it is arguable that the measure may have a discriminatory effect within the meaning of Article 2.1 of the ICCPR and Article 2.2 of the ICESCR, the measure is legitimate, proportionate and reasonable. Finally, the amendments made by the Regulation are consistent with and positively engage Article 7 of the ICESCR as a safeguard for the terms and conditions of employment for visa holders.

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection


 

ATTACHMENT C

 

Details of the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015

 

Section 1 - Name

 

This section provides that the title of the Regulation is the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015.

 

Section 2 - Commencement

 

Subsection 2(1) provides that each provision of the Regulation 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.

 

The table states that the whole of the Regulation commences on 1 December 2015.

 

A note clarifies that this table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 

Subsection 2(2) provides that any information in column 3 of the table is not part of the Regulation. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. Column 3 of the table provides the date/details of the commencement date.

 

The purpose of this section is to provide for when the amendments made by the instrument commence.

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Migration Act 1958 (the Migration Act).

 

The purpose of this section is to set out the Acts under which the Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The effect of this section is that the Migration Regulations 1994 (the Principal Regulations). are amended as set out in the applicable items in Schedule 1 to the Regulation.

 

The purpose of this section is to provide for how the amendments in this Regulation operate.

 

Schedule 1 - Amendments

 

Item 1 - Paragraph 2.72(10)(c)

 

This item repeals and substitutes paragraph 2.72(10)(c) in Division 2.17 of Part 2A of the Principal Regulations. Regulation 2.72 sets out the criteria which must be satisfied for the Minister to approve a nomination of an occupation in relation to an applicant or proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa), or a nomination of an occupation in relation to the holder of a Subclass 457 visa.

 

Subregulation 2.72(10) sets out several criteria which apply to nominations made by a standard business sponsor. These criteria do not apply to labour agreements or work agreements. The criterion in paragraph 2.72(10)(c) requires a standard business sponsor to satisfy the Minister that the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location. The Principal Regulations provide in subregulation 2.57(3A) that terms and conditions are "less favourable" if the "earnings" are lower, unless there is "substantial contrary evidence". The Principal Regulations also define the meaning of "earnings" in regulation 2.57A.

 

As amended, paragraph 2.72(10)(c) makes it clear that the reference to terms and conditions includes the terms and conditions provided by any applicable enterprise agreement under the Fair Work Act 2009. Accordingly, standard business sponsors will be required to satisfy the Minister that the terms and conditions to be provided to employees holding Subclass 457 visas will conform to or exceed the requirements of an enterprise agreement which is applicable to the relevant enterprise. The amendment does not affect the operation of paragraph 2.72(10)(cc) which requires the base rate of pay to be greater than the temporary skilled migration income threshold. This requirement continues to apply even if there is an applicable enterprise agreement.

 

Item 2 - At the end of Division 2.18 of Part 2A

 

This item inserts regulation 2.76A into Division 2.18 of Part 2A of the Principal Regulations. The purpose of Division 2.18 is to set out provisions relating to work agreements. A 'work agreement', as defined in section 5(1) of the Migration Act, is an agreement that satisfies the requirements prescribed by the Principal Regulations. Regulation 2.76 sets out the essential feature of a work agreement, which is that it is a 'labour agreement' that authorises the recruitment, employment, or engagement of services of a person who is intended to be employed or engaged as a holder of a subclass 457 visa. 'Labour agreement' is defined in regulation 1.03 of the Principal Regulations to mean a formal agreement entered into between the Minister, or the Employment Minister, and a person or organisation in Australia, under which an employer is authorised to recruit persons to be employed by that employer in Australia.

 

New subregulation 2.76A(1) provides that the Commonwealth must not enter into a work agreement unless the employer who will be a party to the agreement has made recent and genuine efforts to recruit, employ or engage Australian citizens or Australian permanent residents to meet the labour requirements outlined in the proposed agreement. This requirement for 'labour market testing' was previously imposed as a policy requirement and the details of the evidence required to satisfy this requirement will continue to be set out in policy guidelines.

 

New subregulation 2.76A(2) provides that the requirement for labour market testing does not apply to work agreements dealing with the proposed employment of persons in the occupation of Minister of Religion and Religious Assistant. These occupations were also exempt from labour market testing under the previous policy based requirements.

 

New subregulation 2.76A(3) provides that 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 work agreements and project agreements. The subregulation refers to agreements "known as Project Agreements" because there is no definition of 'project agreement' in the Migration Act or the Principal Regulations. Under policy, a project agreement is an umbrella agreement in relation to large infrastructure or resource development projects, and there may be a number of work agreements arising from the project agreement.

 

New subregulation 2.76A(4) provides that the policy guidelines must include guidelines relating to the objectives and principles relating to the negotiation of project agreements and work agreements, the eligibility requirements to be considered for such agreements, and the obligations to be required of parties entering into such agreements.

 

Item 3 - Paragraph 8107(3)(aa) of Schedule 8

 

This item repeals and substitutes paragraph 8107(3)(aa) of Schedule 8 to the Principal Regulations. Schedule 8 sets out the conditions which may or must be imposed on visas. Paragraph 8107(3)(aa) provides for a condition dealing with the time within which the holder of a Subclass 457 visa must commence work. Prior to amendment, the paragraph stated that the holder must commence work within 90 days after the holder's arrival in Australia. As amended, the paragraph provides for two time periods: applicants who were outside Australia when the visa was granted must commence work within 90 days of arrival; applicants who were in Australia when the visa was granted must commence work within 90 days of the grant of the visa.

The purpose of the amendment is to ensure that the condition operates in a manner which is fair to all visa applicants. Prior to amendment, the condition specified that the holder must commence work within 90 days after the holder's arrival in Australia but did not address differences in timeframe for visa holders who were granted visas offshore or onshore.  The amendment is also consistent with the amendments to the condition dealing with occupational licenses, registrations, and memberships (item 4 below).

 

Item 4 - Paragraph 8107(3)(c) of Schedule 8

 

This item repeals and substitutes paragraph 8107(3)(c) of Schedule 8 to the Principal Regulations. Paragraph 8107(3)(c) imposes requirements on visa holders who are required to hold a licence, registration or membership that is mandatory to perform the nominated occupation.

 

The purpose of the amendment is to expand and clarify these requirements. Prior to amendment, the condition required the visa holder to hold the relevant licence, registration or membership, and comply with each condition or requirement to which the licence, registration or membership is subject. As amended, the clause provides that the holder:

 

*         must hold the licence, registration or membership while the holder is performing the occupation; and

*         must hold the licence, registration or membership within 90 days of arrival in Australia, if the visa holder was outside Australia when the visa was granted, or 90 days of visa grant if the holder was in Australia when the visa was granted; and

*         must notify the Department in writing, as soon as practicable if an application for the licence, registration or membership is refused; and

*         must comply with each condition or requirement to which the licence, registration or membership is subject; and

*         must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and

*         must notify the Department in writing, as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled

 

Item 5 - Schedule 13

 

This item Schedule 13 to the Principal Regulations to insert Part 49 entitled "Amendments made by the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015" and inserts new clause 4901 entitled "Operation of amendments".

 

Inserted subclause 4901(1) provides that the amendments made by item 1 of the Schedule to the Regulation apply in relation to an application for approval of a nomination made on or after the commencement of the item. The purpose of the amendment is to ensure that the amended criterion for approval of a nomination of an occupation applies to nominations made after the new criterion comes into force.

 

Inserted subclause 4901(2) provides that the amendments made by item 2 of the Schedule to the Regulation apply in relation to a work agreement entered into on or after the commencement of the item. The purpose of the amendment is to ensure that the new statutory requirement for labour market testing requirement only applies to work agreements entered into after the labour market testing requirement comes into force. As the statutory requirement is merely replacing an equivalent policy based requirement, there will be no disruption to work agreements which are in the process of negotiation or finalisation when the Regulation commences.

 

Inserted subclause 4901(3) provides that the amendments made by items 3 and 4 of the Schedule to the Regulation apply in relation to visas granted on or after the commencement of those items. The purpose of the amendment is to ensure that the amendments to visa condition 8107 apply only to visas granted after the commencement date, and do not apply to visas granted before that date.

 

It is appropriate that the amendments apply in relation to visa applications already made but not yet finally determined at the commencement of the Regulation as the amendments concern licenses which are mandatory to the performance of the relevant occupation.  Such licensing requirements provide protection to visa holders to ensure that they have the appropriate knowledge and skills to carry out their occupation.  They also give confidence to the general public that that the visa holder is appropriately qualified for the work which is carried out.  It is appropriate to ensure these safeguards apply in relation to all visas granted after the commencement of the Regulation.

 

The purpose of these amendments is to clarify to whom these amendments in the Regulation apply.

 

 

 


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