EXPOSURE DRAFT. Customs Amendment (China-Australia Free Trade Agreement Implementation) Bill 2015

Transcription

1 Customs Amendment (China-Australia Free Trade Agreement Implementation) Bill 2015 (Exposure draft amendments to the Bill) (1) Clause 2, page 2 (at the end of the table), add: 4. Schedule 3 The later of: (a) 1 January 2016; and (b) the day after this Act receives the Royal Assent. (2) Clause 3, page 3 (line 2), before Legislation, insert (1). [migration law] [migration law] (3) Clause 3, page 3 (after line 5), at the end of clause 3, add: (2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General. (4) Page 19 (after line 6), at the end of the Bill, add: Schedule 3 Migration law amendments Migration Act Subsection 5(1) Insert: 457 visa holder means the holder of a visa referred to in the regulations as a Subclass 457 (Temporary Work (Skilled)) visa. Australian permanent resident has the meaning given by the regulations. base rate of pay means the rate of pay payable to an employee for his or her ordinary hours of work, but not including any of the following: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) any other separately identifiable amounts. 1

2 Employment Minister means the Minister responsible for administering the Fair Entitlements Guarantee Act labour agreement means a formal agreement entered into between: (a) the Minister, or the Employment Minister; and (b) a person or organisation in Australia; under which an employer is authorised to recruit persons to be employed by that employer in the migration zone. nominated occupation, in relation to a work agreement, has the meaning given by subsection 140GC(1). nominated project or enterprise, in relation to a work agreement, has the meaning given by subsection 140GC(1). overseas worker support plan means a document setting out how a party to a work agreement (other than the Minister) will provide 457 visa holders with support during the period in which they are employed or engaged by the party. sponsor party, in relation to a work agreement, means a person, an unincorporated association or a partnership in Australia that is a party to the work agreement (other than the Minister). Note: Person is defined to include a body politic or corporate, see section 2C of the Acts Interpretation Act temporary skilled migration income threshold has the meaning given by section 140GE. training plan means a document setting out how a sponsor party to a work agreement will contribute to addressing future skill needs in Australia in the sector to which the work agreement relates. 2 Subsection 5(1) (definition of work agreement) Repeal the definition, substitute: work agreement has the meaning given by section 140GC. 3 Paragraph 140GBA(1)(a) Repeal the paragraph, substitute: (a) the approved sponsor is either: (i) in a class of sponsors prescribed by the regulations; or (ii) a sponsor party; and 4 Section 140GC Repeal the section, substitute: 140GC Work agreements (1) A work agreement is an agreement that meets the following requirements: (a) the agreement is between: (i) the Commonwealth, as represented by the Minister, or by the Minister and one or more other Ministers; and (ii) a sponsor party; 2

3 (b) the agreement is a labour agreement that authorises the recruitment, employment or engagement of services of individuals who are intended to be employed or engaged as 457 visa holders in nominated occupations; (c) the agreement nominates one or more occupations (the nominated occupations) to which the agreement relates; (d) the agreement nominates one or more projects or enterprises (the nominated projects or enterprises) to which the agreement relates; (e) the agreement is in effect; and (f) any other requirements prescribed by the regulations. Note: A sponsor party is an approved sponsor and must satisfy sponsorship obligations. (2) The Minister must not enter into a work agreement on behalf of the Commonwealth unless: (a) the Minister is satisfied that the base rate of pay for the 457 visa holders proposed to be employed or engaged by the sponsor party in relation to the work agreement must be greater than the temporary skilled migration income threshold; and (b) the Minister has had regard to the following: (i) the extent to which the work agreement will support existing jobs for Australian citizens or Australian permanent residents, or help create jobs for such individuals; (ii) the statement of labour market need for suitably qualified and experienced 457 visa holders for the nominated occupations that the sponsor party has given to the Minister; (iii) the training plan that the sponsor party has given to the Minister; (iv) whether an appropriate proportion of the 457 visa holders proposed to be employed or engaged by the sponsor party under the work agreement will have appropriate qualifications, knowledge and experience to train, or to assist in training, Australian citizens or Australian permanent residents in the nominated occupations; (v) the overseas worker support plan that the sponsor party has given to the Minister; (vi) any other matters the Minister considers relevant. Base rate of pay (3) The Minister may, by legislative instrument, determine that paragraph (2)(a) does not apply in relation to a particular work agreement, or a particular class of work agreements. Supporting local jobs (4) For the purposes of subparagraph (2)(b)(i), the Minister must have regard to the following: (a) the likely impact of the work agreement on employment, training and skills development opportunities in Australia; (b) the number of jobs that are likely to be created by the work agreement, directly or indirectly, over the term of the work agreement; (c) the proportion of those jobs that are likely to be offered to: (i) Australian citizens or Australian permanent residents; and (ii) individuals who will be employed or engaged as 457 visa holders; (d) the number of existing jobs that relate to the work agreement that will be supported, either directly or indirectly, over the term of the work agreement; (e) the proportion of those jobs that are held by: 3

4 (i) Australian citizens or Australian permanent residents; and (ii) 457 visa holders; (f) the condition of the national labour market, and any relevant local or regional labour markets; (g) the likely direct and indirect economic impact of the work agreement; (h) any other matter the Minister considers relevant. Statement of labour market need (5) For the purposes of subparagraph (2)(b)(ii), the statement of labour market need may include any or all of the following: (a) analysis of the local, regional, national or industry labour market that indicates shortages of Australian citizens or Australian permanent residents with appropriate skills, qualifications or experience for the nominated occupations; (b) a profile of the sponsor party s workforce, or proposed workforce, including: (i) the number of Australian citizens or Australian permanent residents currently employed or engaged, or expected to be employed or engaged, by the sponsor party; and (ii) the number of 457 visa holders currently employed or engaged, or expected to be employed or engaged, by the sponsor party; (c) a workforce strategy document including the following: (i) the steps the sponsor party has taken, is taking or proposes to take, to recruit Australian citizens or Australian permanent residents for the nominated projects or enterprises; (ii) any relevant Commonwealth, State, Territory or local government employment programs or services which the sponsor party has used, or intends to use; (iii) the steps the sponsor party has taken, is taking, or proposes to take, to reduce its reliance on 457 visa holders in the future. Training plans (6) For the purposes of subparagraph (2)(b)(iii), the training plan may include the following: (a) the relevant occupations in which it is known, or anticipated, that there is, or will be, a skills shortage; (b) the training that will be offered by the sponsor party to address those skills shortages, including: (i) the percentage of the sponsor party s total expenditure that is to be allocated to training the Australian citizens or Australian permanent residents employed by the sponsor party; and (ii) the percentage of the sponsor party s total expenditure that is to be allocated to making payments to one or more industry training funds that operate in the same industry as the sponsor party; and (iii) the number of apprenticeships, traineeships, graduate employment places or other training programs that the sponsor party will offer to Australian citizens or Australian permanent residents; (c) training targets for the period for which the work agreement is to be in effect; (d) how the targets will be implemented and monitored for the period for which the work agreement is to be in effect. 4

5 Overseas worker support plan (7) For the purposes of subparagraph (2)(b)(v), the overseas worker support plan may provide details as to how the sponsor party will provide 457 visa holders with: (a) workplace induction programs that are tailored to meet the needs of 457 visa holders; (b) information on workplace entitlements and rights, including any relevant entitlements and rights the 457 visa holders may have under the Fair Work Act 2009; (c) contact details for relevant trade unions, employee associations, migrant assistance organisations and workplace and occupational health and safety regulators; (d) information on local services, including health, emergency, community, educational and welfare services; (e) information on other support processes or measures that may be relevant to 457 visa holders. 140GD Work agreements imposition of conditions (1) A party to a work agreement (other than the Minister) must comply with any conditions imposed, in writing, in relation to a work agreement under this section. Minister may impose conditions (2) The Minister may impose one or more of the following conditions in relation to a work agreement: (a) that a minimum number or percentage of Australian citizens or Australian permanent residents be employed on one or more nominated projects or enterprises; (b) that no more than a specified number or percentage of 457 visa holders be employed, or have their services engaged, in relation to one or more nominated projects or enterprises; (c) any other condition that the Minister considers appropriate. (3) To avoid doubt, a condition imposed under subsection (2) may be expressed to apply: (a) for the duration of the work agreement, or only in respect of particular periods of the work agreement; and (b) in relation to all nominated occupations under the work agreement, or only in respect of a particular nominated occupation. Minister may vary or revoke conditions (4) The Minister may vary or revoke a condition imposed under subsection (2). (5) If the Minister decides to vary or revoke a condition, the Minister must, as soon as practicable, give the other party written notice setting out: (a) the decision; and (b) the reasons for the decision; and (c) the day on which the variation or revocation takes effect. (6) A failure to comply with subsection (5) in relation to a decision does not affect the validity of the decision. 5

6 Minister may suspend or terminate work agreement (7) If the Minister believes that a condition imposed in relation to a work agreement has not been complied with, the Minister may suspend, or terminate, the work agreement. (8) As soon as practicable after deciding to suspend or terminate a work agreement, the Minister must give the sponsor party to the work agreement a written notice setting out: (a) the decision; and (b) the reasons for the decision; and (c) the day on which the suspension or termination takes effect. (9) A failure to comply with subsection (8) in relation to a decision does not affect the validity of the decision. 140GE Temporary skilled migration income threshold The temporary skilled migration income threshold is $57,000. Note: The amount mentioned in this section is indexed each financial year under section 140GF. 140GF Indexation of temporary skilled migration income threshold (1) If the indexation factor for an indexation day is greater than 1, the temporary skilled migration income threshold amount is, on that day, replaced by the amount worked out using the following formula (rounded to the nearest $100): Temporary skilled migration income threshold for the previous financial year Indexation factor for the indexation year Note: For indexation factor see subsection (2) and for indexation day see subsection (5). (2) The indexation factor for an indexation year is the number worked out using the following formula: AWOTE amount for the most recent reference quarter before the indexation day AWOTE amount for the base quarter Note: For indexation year, AWOTE amount, reference quarter and base quarter see subsection (5). (3) The indexation factor is to be calculated to 3 decimal places (rounding up if the fourth decimal place is 4 or more). (4) If the Australian Statistician publishes an estimate of the seasonally adjusted full-time adult average weekly ordinary time earnings for persons in Australia for a period for which such an estimate was previously published by the Australian Statistician, the publication of the later estimate is to be disregarded for the purposes of this section. (5) In this section: AWOTE amount, for a quarter, means the seasonally adjusted estimate of the full-time adult average weekly ordinary time earnings for persons in Australia for the middle month of the quarter published by the Australian Statistician in relation to that month. base quarter means the period of 3 months starting on the 1 October that occurs before the most recent reference quarter. 6

7 indexation day means each 1 July. indexation year means: (a) the financial year starting on 1 July 2016; and (b) each subsequent financial year. reference quarter means the period of 3 months starting on 1 October. 5 At the end of Subdivision H of Division 3A of Part 2 Add: 140ZL Register of work agreements (1) The Minister must keep a register of work agreements. (2) The register must include the following details in relation to each work agreement that has been entered into: (a) the name of the sponsor party; (b) the date on which the agreement was entered into; (c) when the work agreement is in effect. (3) The register must be publicly available on the Department s website. 140ZM Report by Minister (1) The Minister must prepare a report on the operation and impact of work agreements during each financial year. (2) The report must include the following: (a) the number of work agreements in effect as at the end of the financial year; (b) the number of work agreements entered into by the Minister during the financial year; (c) the number of work agreements in effect during the financial year that continued in effect from the previous financial year; (d) the number of proposed work agreements that the Minister declined to enter into during the financial year; (e) the number of work agreements the Commonwealth entered into in relation to which conditions have been imposed under subsection 140GD(2); (f) in relation to each work agreement that was in effect during the financial year, the following: (i) the conditions imposed in relation to the work agreement under subsection 140GD(2) (if any); (ii) if the work agreement varies a sponsorship obligation that would otherwise be imposed on a sponsor party by the regulations the sponsorship obligation as varied and the reasons the Minister agreed to the variation; (iii) if the work agreement varies any criteria for 457 visa holders under the regulations the criteria as varied and the reasons the Minister agreed to the variation; (iv) the number of Australian citizens and Australian permanent residents that have been employed during the financial year by a sponsor party in relation to the nominated projects or enterprises; (v) the occupations of those Australian citizens or Australian permanent residents; 7

8 (vi) the number of 457 visa holders who are employed by each sponsor party under the work agreement; and (vii) the occupations of those visa holders; (g) information about any compliance or enforcement activities undertaken during the financial year in relation to the administration of this Division; and (h) any other matter the Minister considers relevant. (3) The Minister must table the report in each House of the Parliament within 3 months of the end of the financial year. Migration Regulations Regulation 1.03 (definition of labour agreement) Repeal the definition. 7 Subregulation 2.57(1) (definition of base rate of pay) Repeal the definition. 8 Paragraph 2.72(10)(cc) Omit specified by the Minister in an instrument in writing for this paragraph. 9 Regulation 2.76 Repeal the regulation. 10 After paragraph (2)(d) Insert: (da) if the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation in Australia either: (i) the applicant holds that licence, registration or membership, and has given the Minister a copy of the licence, registration or membership; or (ii) the applicant demonstrates that he or she can meet the requirements to obtain that licence, registration or membership; and 11 After paragraph (4)(e) Insert: (eaa) if the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation in Australia either: (i) the applicant holds that licence, registration or membership, and has given the Minister a copy of the licence, registration or membership; or (ii) the applicant demonstrates that he or she can meet the requirements to obtain that licence, registration or membership; and 12 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 not perform the occupation until the holder holds the licence, registration or membership; and 8

9 (ii) must hold the licence, registration or membership within 60 days after the holder s arrival in Australia; and (iii) before the holder performs the occupation must give the Department documentation of the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and (iv) must comply with each condition or requirement to which the licence, registration or membership is subject; and (v) 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 (vi) must notify the Department, in writing, as soon as practicable of any changes to the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject. 13 Application The amendments made by this Schedule apply in relation to work agreements entered into on or after the day on which this item commences. 9