This article will outline the approval of nominations made by approved work sponsors (Division 3A Subdivision BA) of the Migration Act 1958. Under this division, an approved work sponsor must nominate an overseas worker for a particular occupation. The position must:
- Appear on the relevant skilled occupation list;
- Meet the relevant visa criteria, including the minimum salary threshold and other requirements.
The Department of Home Affairs is responsible for assessing and approving nominations made by approved work sponsors. The department considers various factors, such as the genuineness of the position, the skills and qualifications of the overseas worker, and the impact on the Australian labour market. Read on to know more about relevant sections of the approval of nominations made by approved work sponsors.
Section 140GB: Minister to Approve Nominations
Section 140GB of the approval of nominations made by approved work sponsors allows a person who is an approved work sponsor or negotiating a work agreement to nominate an applicant for a visa or a proposed occupation, program, or activity. The Minister must approve the nomination if the applicant meets certain conditions, including:
- Satisfying the labour market testing condition
- Paying the nomination training contribution charge (if applicable); and
- Meeting the prescribed criteria by the regulations
The regulations may establish a process for the Minister to approve the nomination, and different criteria and processes may apply for different types of visas and work sponsor classes. Note that there are exemptions for the labour market testing condition in cases of major disasters or for required skill levels and occupations for nominated positions.
Section 140GBA: Labour Market Testing
Section 140GBA of the approval of nominations made by approved work sponsors applies if:
- The person nominating someone has applied to be in a class of “approved work sponsors” that the regulation prescribes; and
- They nominate a proposed occupation and a particular position associated with the nominated occupation that is to be filled by a visa holder or applicant.
The labour market testing condition applies when parties met the following conditions:
- The person nominating has applied or is in a class of approved work sponsors as prescribed by the regulations.
- The nominee has been identified for a particular position associated with a nominated occupation.
- The labour market testing condition is not inconsistent with any international trade obligation of Australia
According to Section 140GBA of the approval of nominations made by approved work sponsors, the labour market testing condition is satisfied if:
- The nominee has undertaken labour market testing within a period determined by the Minister.
- The labour market testing was undertaken in the manner determined by the Minister.
- Evidence of the labour market testing is provided with the nomination, including information about redundancies or retrenchments in the previous four months.
- A suitably qualified and experienced Australian citizen or permanent resident is not readily available to fill the nominated position, and
- A suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.
The Minister may, by legislative instrument, determine the manner in which labour market testing is undertaken, including the language to be used for any advertising of the position, the method of advertising, and the period and duration of the advertising. The Minister may also prescribe different manners or evidence for different nominated positions or classes of nominated positions.
Section 140GBB: Labour Market Testing – Major Disaster Exemption
Section 140GBB of the approval of nominations made by approved work sponsors outlines the circumstances under which a person is exempt from labour market testing conditions in 140GBA because of a major disaster. Specifically, if a person gets an exemption by the Minister of the government, they do not need to meet labour market testing conditions.
To get an exemption, the Minister must believe that:
- A major disaster has occurred in Australia; and
- The exemption is necessary or desirable to assist in disaster relief or recovery.
In deciding whether a major disaster has occurred, the Minister must consider factors such as:
- The number of individuals affected; and
- The extent of the disaster.
If a person has an exemption, it may apply to a specific job they have a nomination for, or a class of jobs. The exemption must apply to a particular person specified in the exemption rather than a class of persons. Finally, it’s worth noting that the exemption itself is not a legislative instrument.
Section 140GBC: Labour Market Testing – Skill and Occupational Exemptions
Section 140GBC of the approval of nominations made by approved work sponsors pertains to the exemptions from the labour market testing condition for certain nominated positions associated with specific occupations. A person is exempt from the labour market testing condition if:
- A person nominates an occupation and a particular position that a visa holder or applicant must fill; and
- The nominated position requires a relevant bachelor’s degree or higher qualification or 5 years or more of relevant experience.
Similarly, a person is also exempt from the labour market testing condition if the nominated position requires:
- A relevant associate degree
- Advanced diploma or diploma covered by the Australian Qualifications Framework (AQF); or
- 3 years or more of relevant experience
The Minister has the authority to specify the occupations that qualify for these exemptions through legislative instrument.
Section 140GC: Work Agreements
Section 140GC refers to the power of the regulations to set out specific requirements for a work agreement to be valid.
The purpose of these requirements is to ensure that the agreement meets certain standards or criteria. Additionally, the Section notes that anyone who is a party to a work agreement (except a Minister) is an “approved work sponsor” and must meet certain sponsorship obligations.
Importance of Seeking Legal Advice
It’s important to seek legal advice from JB Solicitors since we deal with matters like the approval of nominations made by approved work sponsors. This is a complex area of law that involves strict compliance with various regulations and legislation. Our immigration lawyers can provide expert guidance and assistance throughout the nomination and sponsorship process
This ensures that your application meets all the necessary requirements and stands the best chance of success. With our legal assistance, we can help you navigate the legal complexities of the Australian visa system and achieve your immigration goals.
Message us today if you need help with your immigration law matter.