Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 (Cth)

Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015

Select Legislative Instrument No. 185, 2015

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.

Dated 12 November 2015

Peter Cosgrove

Governor‑General

By His Excellency’s Command

Peter Dutton

Minister for Immigration and Border Protection

Contents

1............ Name.................................................................................................. 1

2............ Commencement.................................................................................. 1

3............ Authority............................................................................................ 1

4............ Schedules............................................................................................ 1

Schedule 1—Amendments                                                                            2

Migration Regulations 1994                                                                    2

1Name

This is the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015.

2Commencement

(1)Each provision of this instrument 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.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1.  The whole of the instrument	1 December 2015.	1 December 2015

Note:This table relates only to the provisions of this instrument as originally made.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.

(2)Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3Authority

This instrument is made under the Migration Act 1958.

4Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Migration Regulations 1994

1  Paragraph 2.72(10)(c)

Repeal the paragraph, substitute:

                    (c)  the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

2  At the end of Division 2.18 of Part 2A

Add:

2.76A  Labour market testing and other work agreement requirements

            (1)  The Commonwealth must not enter into a work agreement in relation to the recruitment, employment or engagement of persons in occupations and locations required by the other party to the agreement unless the Minister is satisfied that the other party has made recent and genuine efforts to recruit, employ or engage Australian citizens or Australian permanent residents to meet those requirements.

            (2)  Subregulation (1) does not apply in relation to the recruitment, employment or engagement of a person in the following occupations:

                    (a)  Minister of Religion;

                    (b)  Religious Assistant.

            (3)  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 the following agreements:

                    (a)  work agreements;

                    (b)  agreements, known as Project Agreements, that relate to work agreements.

            (4)  Without limiting subregulation (3), the policy guidelines must include guidelines relating to the following:

                    (a)  objectives and principles relating to the negotiation of the agreements mentioned in that subregulation;

                    (b)  eligibility requirements to be considered for such agreements;

                    (c)  obligations to be required of parties entering into such agreements.

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

Repeal the paragraph, substitute:

                   (aa)  subject to paragraph (c), the holder must:

                             (i)  if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and

                            (ii)  if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and

4  Paragraph 8107(3)(c) of Schedule 8

Repeal the paragraph, substitute:

                    (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:

                             (i)  must hold the licence, registration or membership while the holder is performing the occupation; and

                            (ii)  if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and

                           (iii)  if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and

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

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

                           (vi)  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

                          (vii)  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.

5  Schedule 13

Insert in its appropriate numerical position:

Part 49—Amendments made by the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015

4901  Operation of amendments

(1) The amendment of these Regulations made by item 1 of Schedule 1 to the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 applies in relation to an application for approval of a nomination made on or after the commencement of the item.

(2) The amendment of these Regulations made by item 2 of Schedule 1 to the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 applies to a work agreement entered into on or after the commencement of the item.

            (3)  The amendments of these Regulations made by items 3 and 4 of Schedule 1 to the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 apply in relation to a visa granted on or after the commencement of the items.