AUSTRALIA GOVT HAS PASSED THE LABOR MARKET TESTING IN VISA 457 IN JUNE 2013 TO BE IMPLEMENTED FROM 28TH DECEMBER 2013 CHANGES ARE SIGNIFICANT FOR BOTH THE EMPLOYERS AND JOB SEEKERS AND HOW DOES IT WILL AFFECT SEE BELOW 457 Labour Market Testing – What does it mean for you? A bill introducing controversial labour market testing for subclass 457 Temporary Work (Skilled) visas was passed by the Australian Federal Parliament in late June 2013. It was signed into law[i] by the Governor General on 28 June 2013. The commencement date has not been declared. The law will in operate from 28 December 2013 if no declaration is made. Based upon our review, we tend to share the belief of many in the business community, that labour market testing will do very little but result in business costs. Labour market testing is not a new concept. A similar labour market testing regime existed for the permanent Employer Nomination Scheme (ENS), Regional Sponsored Migration Scheme (RSMS) and Labour Agreements (LA). That regime was discontinued on 2 April 2005. “…a new brand for an old ineffective model…” The previous labour market testing regime required the Minister to be satisfied that a suitable Australian citizen or permanent resident for the position could not be found. Generally, to satisfy that requirement, evidence was needed to show that the position was advertised, the skills and experience of the unsuccessful applicants and reasons for not selecting those applicants. The Explanatory Statement to the Migration Amendment Regulations 2005 (No. 1) which removed labour market testing stated that the requirement “was found to be ineffective and costly to prospective employers”. Instead, a list of skilled occupations and targeted location was introduced, similar to the current Consolidated Sponsored Occupation List (“CSOL”). Occupations listed were recognised as having a shortage or workers in Australia. Given this history, it appears the purpose fulfilled by the skills occupations list (now CSOL) will be eroded when the new laws commerce. The new Labour Market Testing – Key elements: 1. Before approving a 457 nomination, the Minister (DIAC) must be satisfied that: a. a suitably qualified and experienced Australian citizen or permanent resident, and b. if the business is in the agricultural sector, a suitably qualified and experienced current employee of the business whom is the holder of a subclass 417 Working Holiday or a subclass 462 Work and Holiday visa, is not readily available to fill the nominated position 2. A business sponsor before making a nomination will need to have undertaken labour marketing test within a period specified for the nominated occupation. If there were any redundancy or retrenchment of an Australian worker in the 4 months prior to the nomination, then information about the redundancy or retrenchment must be provided and labour market testing must be undertaken after the redundancy or retrenchment. 3. Evidence of labour market testing: Mandatory Evidence/Information Optional Evidence/Information · Information about attempts to recruit suitably qualified and experienced Australian citizens or permanent residents to the position and any other similar position. The information must include details of: 1. any advertising (paid or unpaid) for the position and any similar position undertaken by the business sponsor, and 2. fees and other expenses paid. · Evidence of any research released in the 4 months before the nomination relating to labour market trends generally and in relation to the nominated occupation. · Expressions of support from government authorities with responsibility for employment matters. · Any other type of evidence as specified by the Minister from time to time. · Information about the business sponsor’s participation in relevant job and career expositions. · Details of any other fees and expenses paid or payable for any recruitment attempts. · Details of the results of the recruitment attempts. 4. A business sponsor has the right not to provide any or all of the optional evidence or information. The Minister (DIAC) cannot treat the nomination application less favourably merely because such optional evidence or information is not provided. Certain exemptions to Labour Market Testing Skill and occupational exemptions A nominated position will be exempted from to need to satisfy the labour market testing requirement if: · the nominated occupation requires a relevant bachelor or higher qualification and/or 5 years or more of the relevant experience and the occupation is specified by the Minister for purposes of Labour Market Testing exemption. OR · the nominated occupation requires a relevant associated degree, Australian Qualifications Framework (AQF) advanced diploma or diploma and/or 3 years or more of the relevant experience and the occupation is specified by the Minister for purposes of Labour Market Testing exemption. The skill and occupational exemption is not available to an occupation that requires a qualification and/or experience in the field of engineering (including shipping engineering) or nursing. Major disaster exemption An approved business sponsor may be exempted from the need to satisfy labour market testing if the Minister is satisfied that there has been a major disaster event which has a significant impact on individuals, and a government response is required and the exemption is necessary or desirable in order to assist disaster relief or recovery. Our Analysis It appears to us the new labour market testing regime is very similar to the one that was in place prior to 2 April 2005 for ENS, RSMS and LA. The main differences are that the new requirement is more prescriptive and are within the Migration Act as opposed to being prescribed in Migration Regulations and policy documents. In our view, it is really just a new brand for an old ineffective model. The legislation provides a list of optional evidence and information described in details that a business sponsor may provide. However interestingly, if any of the optional evidence or information is not provided, the Minister (DIAC) cannot treat the nomination application less favourably on that basis. Given this concession, we believe a business sponsor should carefully consider whether to provide optional evidence or information. In some cases, it may be better not to provide than to provide. It would be interesting to see how DIAC will approach cases where the business sponsor elects not to provide optional evidence or information. In these circumstances, we do expect to see legal errors in DIAC’s decisions. How does it affect your business? The introduction of the new 457 labour market testing regime will certainly cause your business inconvenience and increase your costs in sponsoring skilled foreign workers. We see this as the only outcome that this 457 labour market testing is capable of achieving. Would this labour market testing regime make nominating a position much more difficult? Yes, but if you believe that government should not dictate recruitment processes of Australian businesses. You need to get professional advice early and plan ahead to contend with the labour market testing requirement.
Posted on: Tue, 06 Aug 2013 03:14:02 +0000
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