Overview

The Migration Act 1958 was enacted to regulate the entry, stay, and departure of people in Australia, among other things. The specified period in which labour market testing must be undertaken was introduced to provide clarity and consistency in the process for employers who sponsor temporary skilled migrants. This legislative instrument, F2013L01953, was made under Section 140GBA of the Act, and it was developed following consultations with various stakeholders in 2013. The primary objective of this instrument is to establish a clear timeframe for labour market testing in relation to nominated occupations for standard business sponsors. The instrument was exempt from disallowance, and a Regulatory Impact Statement was not required, as advised by the Office of Best Practice Regulation. The instrument commenced on 23 November 2013, immediately following the commencement of the Migrations Amendment (Temporary Sponsored Visas) Act 2013.

Scope and Application

The legislative instrument F2013L01953, made under Section 140GBA of the Migration Act 1958, pertains specifically to the timeframe within which labour market testing must be undertaken for nominated occupations. This instrument applies to standard business sponsors who are nominating an occupation, thereby setting out a defined period for completing labour market testing as a prerequisite to certain visa applications. This requirement is integral to the legislative framework governing temporary skilled migration in Australia, aiming to ensure that the employment of overseas workers does not adversely affect the Australian labour market. The instrument operates on a national level, aligning with the overarching provisions of the Migration Act 1958, which is a Commonwealth Act. The instrument exempts certain categories of sponsorships and occupations from the labour market testing requirement, aligning with broader policy objectives to facilitate temporary skilled migration while protecting the interests of Australian workers. Through this legislative instrument, the Minister exercises powers under the Act to specify the period for labour market testing, thereby influencing the operational dynamics of temporary skilled migration. This legislative measure ensures that employers undertake the necessary steps to demonstrate that there are no suitably qualified Australian citizens or permanent residents available to fill the positions being offered to overseas workers.

Key Provisions

The principal operative section of the Instrument is section 140GBA(4) of the Migration Act 1958, which allows the Minister to determine by legislative instrument the period within which labour market testing must be undertaken in relation to a nominated occupation. This legislative instrument, IMMI 13/136, specifies a particular period for such testing. It is designed to ensure that businesses sponsor temporary skilled migrants only when it is evident that no suitable Australian worker is available to fill the job. The instrument aims to protect the local labour market by ensuring that employers consider all available domestic workers before resorting to the hiring of overseas workers. The obligations imposed by this legislation on parties and entities, particularly business sponsors, are clear and specific. Under this instrument, business sponsors nominating a temporary skilled migrant must undertake labour market testing within the specified period to demonstrate that no Australian worker is available for the position. This involves advertising the position to Australian residents and ensuring that the role meets the necessary criteria for sponsorship. Sponsors must adhere strictly to the timeline and processes outlined in the legislation to avoid any issues with their application. The consequences for non-compliance with the labour market testing requirements are significant. If a business sponsor fails to undertake labour market testing within the prescribed period, it may face penalties. Such non-compliance could lead to the rejection of their application to sponsor a temporary skilled migrant, which could have serious implications for their business operations. While the specific penalties are not detailed in this explanatory statement, it is clear that failure to adhere to the legislative requirements can result in substantial administrative and possibly legal repercussions for the sponsoring entity.