Migration (Labour market testing) Amendment Determination (LIN 22/064) 2022

Overview

The Migration (Labour Market Testing) Amendment Determination (LIN 22/064) 2022, issued under the authority of the Minister for Immigration, Citizenship, and Multicultural Affairs, amends the Migration (LIN 18/036: Period, Manner and Evidence of Labour Market Testing) Instrument 2018. This legislative instrument was enacted to update the means by which businesses must advertise job positions as part of the labour market testing (LMT) process required under the Migration Act 1958. The primary change is the substitution of the Jobactive website with the Workforce Australia website for mandatory job advertisements, effective from 4 July 2022. This amendment ensures a smooth transition for businesses as the Jobactive website is decommissioned, and it maintains continuity in the LMT process. The instrument was made without public consultation due to the minor nature of the changes, and it was reviewed by the Office of Best Practice Regulation, which confirmed that the amendments would have minimal regulatory impacts.

Scope and Application

The Migration (Labour market testing) Amendment Determination (LIN 22/064) 2022 amends the Migration (LIN 18/036: Period, manner and evidence of labour market testing) Instrument 2018 to update the manner in which businesses must advertise positions in the Australian labour market as part of the labour market testing (LMT) process. The amendment is made under the authority of the Migration Act 1958 and specifically under subsections 140GBA(4), (5), and (6A) of the Act, which pertain to LMT conditions. The purpose of this amendment is to reflect the transition from the Jobactive website to the Workforce Australia website for job advertising, which became effective from 4 July 2022. Businesses must now use the Workforce Australia website to advertise positions, while any advertisements on the Jobactive website before the specified date are deemed to meet the new requirements, ensuring continuity for businesses during the transition. This legislative instrument applies to all businesses subject to the labour market testing provisions under the Migration Act, thus impacting industries that rely on temporary skilled migration. The amendment has a national jurisdictional reach, affecting all businesses across Australia. There are no exclusions, exemptions, or thresholds specified in this particular amendment; however, the broader LMT provisions of the Act may include such criteria. The instrument does not require consultation as it is deemed not to substantially alter the existing legislative framework, and according to the Office of Best Practice Regulation, it is likely to have only minor regulatory impacts.

Key Provisions

The primary operative sections of this legislative instrument, as specified in LIN 22/064, pertain to the labour market testing (LMT) conditions under subsection 140GBA(3) of the Migration Act 1958. These conditions mandate that businesses must test the Australian labour market to demonstrate whether a position could be readily filled by a suitably qualified and experienced Australian citizen or permanent resident. Specifically, section 140GBA(3) outlines the requirements for the period of LMT, the manner of LMT, and the evidence needed to demonstrate that LMT has occurred. The instrument amends the existing Migration (LIN 18/036: Period, manner and evidence of labour market testing) Instrument 2018, updating the method by which businesses must advertise positions. The amendment, detailed in section 3, replaces the Jobactive website with the Workforce Australia website as the mandatory platform for job advertisements, effective from 4 July 2022. This change is further detailed in Item 3 of Schedule 1, which substitutes the Jobactive website with the Workforce Australia website in paragraph 8(3)(a) of LIN 18/036. The obligations and requirements imposed by this legislation on businesses are primarily focused on ensuring compliance with updated advertising requirements for LMT. Businesses must now advertise positions on the Workforce Australia website, which will replace the Jobactive website as the mandatory platform for job advertisements. This shift is designed to streamline the process and ensure businesses can continue to meet their LMT obligations without interruption. Additionally, Item 4 of Schedule 1 ensures that any advertisements listed on the Jobactive website before the transition date of 4 July 2022 will be considered to meet the new requirements, thereby preventing businesses from needing to readvertise to comply with the 4-week time period specified in subsection 8(5) of LIN 18/036 and subsection 140GBA(6) of the Act. Regarding penalties and consequences for non-compliance, the legislation does not explicitly outline specific penalties for failing to advertise positions on the Workforce Australia website. However, non-compliance with LMT requirements can lead to broader implications under the Migration Act 1958, potentially impacting the eligibility of a business to sponsor a visa applicant. The severity of the consequences would depend on the specific circumstances and the discretion of the relevant authorities. The instrument itself is exempt from disallowance under section 42 of the Legislation Act, as it falls under Part 2 of the Act, which is prescribed in the Legislation (Exemptions and Other Matters) Regulation 2015. The Minister made the instrument in accordance with subsections 140GBA(4), 140GBA(5), and 140GBA(6A) of the Act, ensuring that the changes are implemented within the legal framework provided by the Migration Act 1958.