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Protecting Local Jobs (Regulating Enterprise Migration Agreements) Bill 2012

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2010-2011-2012

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Protecting Local Jobs (Regulating Enterprise Migration Agreements) Bill 2012

 

 

(1)     Clause 1, page 1 (line 6), omit “ Enterprise Migration ”, substitute “ Work ”.

[short title]

(2)     Clause 3, page 2 (line 2), omit “Each Act”, substitute “Each Act, or set of regulations,”.

[amendments of regulations]

(3)     Schedule 1, item 1, page 3 (lines 4 to 7), omit the item, substitute:

1  Section 12

Insert:

employer participant has the meaning given by paragraph 140ZKB(2)(a) of the Migration Act 1958 .

1A  Section 12

Insert:

non-employer participant has the meaning given by paragraph 140ZKB(2)(b) of the Migration Act 1958 .

1B  Section 12

Insert:

participant has the meaning given by subsection 140ZKB(2) of the Migration Act 1958 .

[participants]

(4)     Schedule 1, item 2, page 3 (lines 8 to 11), omit the item, substitute:

2  Section 12

Insert:

work agreement has the meaning given by the Migration Act 1958 .

[definition of work agreement]

(5)     Schedule 1, item 3, page 3 (lines 14 and 15), omit “Minister agreeing to the making of enterprise migration”, substitute “Minister’s role in the making of work”.

[work agreements]

(6)     Schedule 1, item 3, page 3 (line 16), omit “Enterprise migration”, substitute “Work”.

[work agreements]

(7)     Schedule 1, item 4, page 3 (line 21), omit “ Enterprise migration ”, substitute “ Work ”.

[work agreements]

(8)     Schedule 1, item 4, page 3 (line 22), omit “ enterprise migration ”, substitute “ work ”.

[work agreements]

(9)     Schedule 1, item 4, page 3 (lines 23 to 26), omit subsection 536A(1), substitute:

             (1)  A work agreement of a kind referred to in subsection 140GC(2) of the Migration Act 1958 must not be made unless the Minister is satisfied that the participant concerned:

                     (a)  has complied, and will continue to comply, with workplace laws; and

                     (b)  has consulted in good faith with any registered employee association that is or will be entitled to represent the industrial interests of persons to be recruited under the agreement.

[work agreements]

(10)   Schedule 1, item 4, page 4 (line 2), omit “an enterprise migration”, substitute “a work”.

[work agreements]

(11)   Schedule 1, item 4, page 4 (line 4), omit “ enterprise migration ”, substitute “ work ”.

[work agreements]

(12)   Schedule 1, item 4, page 4 (line 6), omit “an enterprise migration”, substitute “a work”.

[work agreements]

(13)   Schedule 1, item 4, page 4 (line 7), omit “the EMA”, substitute “any employer”.

[participants]

(14)   Schedule 1, item 4, page 4 (line 8), omit “the EMA”, substitute “any employer”.

[participants]

(15)   Schedule 1, item 4, page 4 (line 9), omit “Australian residents”, substitute “local workers (within the meaning of subsection 140ZKC(3) of the Migration Act 1958 )”.

[conditions on work agreements]

(16)   Schedule 1, item 4, page 4 (line 18), omit “the EMA”, substitute “any employer”.

[participants]

(17)   Schedule 1, item 4, page 4 (line 21), omit “the EMA”, substitute “any employer”.

[participants]

(18)   Schedule 1, item 4, page 4 (line 22), omit “Australian residents”, substitute “local workers (within the meaning of subsection 140ZKC(3) of the Migration Act 1958 )”.

[conditions on work agreements]

(19)   Schedule 1, item 4, page 4 (line 24), omit “paragraph (b).”, substitute “paragraph (b);”.

[conditions on work agreements]

(20)   Schedule 1, item 4, page 4 (after line 24), at the end of subsection 536B(1), add:

                     (e)  that any non-employer participant concerned ensures that any employer participant concerned complies with any conditions imposed on the employer participant by the Minister in relation to the employment to which the agreement relates;

                      (f)  that any participant concerned report at specified times or specified intervals to the Minister in relation to:

                              (i)  the participant’s compliance with the conditions imposed by the Minister; and

                             (ii)  consultation by the participant with interested parties about the participant’s compliance with those conditions.

[conditions on work agreements]

(21)   Schedule 1, item 4, page 4 (after line 24), at the end of section 536B, add:

             (2)  Subsection (1) does not limit the conditions that may be imposed on the making of a work agreement.

[work agreements]

(22)   Schedule 1, item 5, page 4 (lines 26 to 29), omit the item, substitute:

5  Subsection 5(1)

Insert:

employer participant has the meaning given by paragraph 140ZKB(2)(a).

5A  Subsection 5(1)

Insert:

non-employer participant has the meaning given by paragraph 140ZKB(2)(b).

5B  Subsection 5(1)

Insert:

participant has the meaning given by subsection 140ZKB(2).

[participants]

(23)   Schedule 1, item 6, page 4 (lines 30 to 33), omit the item, substitute:

6  Subsection 5(1) (definition of work agreement )

Repeal the definition, substitute:

work agreement has the meaning given by section 140GC.

[work agreements]

(24)   Schedule 1, page 5 (after line 4), after item 7, insert:

7A  Section 140GC

Repeal the section, substitute:

140GC  Work agreements

             (1)  An agreement that satisfies the requirements in subsection (2), (3) or (4) is a work agreement .

             (2)  An agreement satisfies the requirements in this subsection if:

                     (a)  it is between:

                              (i)  the Commonwealth, as represented by the Minister, or by the Minister and 1 or more other Ministers; and

                             (ii)  a person, an unincorporated association or a partnership in Australia; and

                     (b)  it is a labour agreement that authorises the recruitment, employment, or engagement of services of a person who is intended to be employed or engaged as a holder of a Subclass 457 (Business (Long Stay)) visa (within the meaning of the Migration Regulations 1994 ); and

                     (c)  it is in effect; and

                     (d)  it is not an IASS agreement.

             (3)  An agreement satisfies the requirements in this subsection if:

                     (a)  it is between:

                              (i)  the Commonwealth, as represented by the Minister, or by the Minister and 1 or more other Ministers; and

                             (ii)  a sporting organisation; and

                     (b)  it authorises the recruitment of a person who it is proposed will take part in the sporting activities of the sporting organisation as a holder of a Subclass 421 (Sport) visa (within the meaning of the Migration Regulations 1994 ), whether as an employee or otherwise; and

                     (c)  it is in effect; and

                     (d)  it is not an IASS agreement.

             (4)  An agreement satisfies the requirements in this subsection if:

                     (a)  it is between:

                              (i)  the Commonwealth, as represented by the Minister, or by the Minister and 1 or more other Ministers; and

                             (ii)  a religious institution in Australia; and

                     (b)  it authorises the recruitment of a person who it is proposed will take part in the religious activities of the religious institution as a holder of a Subclass 428 (Religious Worker) visa (within the meaning of the Migration Regulations 1994 ), whether as an employee or otherwise; and

                     (c)  it is in effect.

             (5)  In this section:

IASS agreement means an agreement referred to in regulation 1.16B of the Migration Regulations 1994 .

labour agreement means a formal agreement entered into between:

                     (a)  the Minister, or the Minister responsible for administering section 1 of the Fair Work Act 2009 ; and

                     (b)  a person or organisation in Australia;

under the terms of which an employer is to recruit persons to be employed by that employer in Australia.

sporting organisation has the same meaning as in the Migration Regulations 1994 .

religious institution has the same meaning as in the Migration Regulations 1994 .

[meaning of work agreement]

(25)   Schedule 1, item 8, page 5 (line 7), omit “ Enterprise migration ”, substitute “ Work ”.

[work agreements]

(26)   Schedule 1, item 8, page 5 (line 9), omit “enterprise migration”, substitute “work”.

[work agreements]

(27)   Schedule 1, item 8, page 5 (lines 13 to 19), omit section 140ZKB, substitute:

140ZKB  Power to make work agreements

             (1)  The Minister may, on behalf of the Commonwealth, make a work agreement in accordance with this Division.

             (2)  Each of the following is a participant in relation to a work agreement:

                     (a)  an employer (an employer participant ) who, under the terms of the agreement, is to recruit other persons to be employed by the employer in Australia;

                     (b)  any other person (other than a Minister) (a non-employer participant ) who is a party to the agreement.

[work agreements]

(28)   Schedule 1, item 8, page 5 (line 20), omit “ enterprise migration ”, substitute “ work ”.

[work agreements]

(29)   Schedule 1, item 8, page 5 (before line 21), before subsection 140ZKC(1), insert:

          (1A)  A work agreement of a kind referred to in subsection 140GC(2) must not be made in relation to jobs that are not yet available unless:

                     (a)  the Minister is satisfied that there is credible evidence that, for those kinds of jobs:

                              (i)  there is an existing labour shortage; and

                             (ii)  the labour shortage will continue for the expected duration of the work agreement (disregarding the possible effect of the work agreement); and

                     (b)  the Minister is satisfied that, when the jobs become available:

                              (i)  the participant will make all practicable attempts to employ local workers for the jobs, including by advertising the jobs (other than on the local jobs board); and

                             (ii)  the jobs will be advertised on the local jobs board.

[work agreements]

(30)   Schedule 1, item 8, page 5 (line 21), omit “The Minister must not make the enterprise migration”, substitute “A work agreement of a kind referred to in subsection 140GC(2) must not be made in relation to jobs that are currently available”.

[work agreements]

(31)   Schedule 1, item 8, page 5 (line 23), omit “EMA”.

[participants]

(32)   Schedule 1, item 8, page 5 (lines 24 and 25), omit “to be covered by the enterprise migration agreement”.

[work agreements]

(33)   Schedule 1, item 8, page 5 (after line 30), at the end of section 140ZKC, add:

             (3)  A person is a local worker for the purposes of this section if the person is:

                     (a)  an Australian citizen; or

                     (b)  a permanent resident as defined in subsection 204(2); or

                     (c)  a New Zealand citizen who holds a temporary visa.

[local workers]

(34)   Schedule 1, item 8, page 6 (line 3), omit “The Minister must not make the enterprise migration agreement”, substitute “A work agreement must not be made”.

[work agreements]

(35)   Schedule 1, item 8, page 6 (lines 5 and 6), omit “has agreed to the making of”, substitute “is satisfied as required under section 536A of the Fair Work Act 2009 in relation to”.

[work agreements]

(36)   Schedule 1, item 8, page 6 (line 9), after “Minister”, insert “under section 536B of the Fair Work Act 2009 ”.

[work agreements]

(37)   Schedule 1, item 8, page 6 (line 10), omit “EMA”.

[participants]

(38)   Schedule 1, item 8, page 6 (line 13), omit “an enterprise migration”, substitute “a work”.

[work agreements]

(39)   Schedule 1, item 8, page 6 (line 14), omit “ Enterprise migration ”, substitute “ Work ”.

[work agreements]

(40)   Schedule 1, item 8, page 6 (line 16), omit “the Minister makes the enterprise migration agreement”, substitute “a work agreement is made”.

[work agreements]

(41)   Schedule 1, page 6 (after line 18), at the end of the Schedule, add:

9  Savings provision

An agreement that, immediately before the commencement of this Act, was a work agreement within the meaning of the Migration Act 1958 continues to be a work agreement within the meaning of that Act, despite the amendments made by this Act, for so long as the agreement remains in effect.

[work agreements savings provision]

(42)   Schedule 1, page 6, at the end of the Schedule, add (after proposed item 9):

Migration Regulations 1994

10  Paragraph 2.72E(3)(a)

Omit “subregulation 2.76 (3)”, substitute “subsection 140GC(3) of the Act”.

[consequential amendment of cross-reference]

(43)   Schedule 1, page 6, at the end of the Schedule, add (after proposed item 10):

11  Subregulation 2.72H(3)

Omit “subregulation 2.76 (4)”, substitute “subsection 140GC(4) of the Act”.

[consequential amendment of cross-reference]

(44)   Schedule 1, page 6, at the end of the Schedule, add (after proposed item 11):

12  Regulation 2.76

Repeal the regulation.

[repeal of regulation relating to work agreements]

(45)   Schedule 1, page 6, at the end of the Schedule, add (after proposed item 12):

13  Schedule 1, sub sub-subparagraph 1205(3)(cb)(ii)(C)(I)

Omit “subregulation 2.76 (3)”, substitute “subsection 140GC(3) of the Act”.

[consequential amendment of cross-reference]

(46)   Schedule 1, page 6, at the end of the Schedule, add (after proposed item 13):

14  Schedule 1, sub sub-subparagraph 1205(3)(cb)(ii)(D)(I)

Omit “subregulation 2.76 (4)”, substitute “subsection 140GC(4) of the Act”.

[consequential amendment of cross-reference]

(47)   Schedule 1, page 6, at the end of the Schedule, add (after proposed item 14):

15  Schedule 2, paragraph 421.222(b)

Omit “subregulation 2.76 (3)”, substitute “subsection 140GC(3) of the Act”.

[consequential amendment of cross-reference]

(48)   Schedule 1, page 6, at the end of the Schedule, add (after proposed item 15):

16  Schedule 2, paragraph 428.222(b)

Omit “subregulation 2.76 (4)”, substitute “subsection 140GC(4) of the Act”.

[consequential amendment of cross-reference]