2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PROTECTING LOCAL JOBS (REGULATING ENTERPRISE MIGRATION AGREEMENTS) BILL
2012
EXPLANATORY MEMORANDUM
Circulated by the authority of Adam Bandt
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PROTECTING LOCAL JOBS (REGULATING ENTERPRISE MIGRATION AGREEMENTS) BILL
2012
OUTLINE
The Protecting Local Jobs (Regulating Enterprise Migration Agreements) Bill 2012 amends the
Fair Work Act 2009 and the Migration Act 1958.
The Bill will create a legislative framework for Enterprise Migration Agreements (EMA) to
ensure such agreements are used only where genuinely necessary and do not adversely affect
local job opportunities. The Bill also sets out various conditions that can be included when an
EMA is made.
The Bill will require employers to advertise jobs to locals before they can get an EMA. It will also
require a local jobs board listing jobs to be filled in the resources sector to be maintained by the
Workplace Relations Minister.
Requirements can be placed on employers who use EMA’s to train and prioritise employment for
locals, recently retrenched workers and other groups with high unemployment rates.
The Workplace Relations Minister can include a condition that an EMA participant provide, or
contribute to, training for Australian residents other than those employed under the EMA.
The Workplace Relations Minister must also be satisfied that the EMA participant concerned has
complied, and will continue to comply, with workplace laws.
The Bill will require a copy of an EMA to be tabled in each House of the Parliament as soon as
practicable after it has been made.
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NOTES ON CLAUSES
Clause 1 – Short Title
This is a formal provision specifying the short title.
Clause 2 – Commencement
The Bill's provisions are to commence the day after the Bill receives Royal Assent.
Clause 3 – Schedules
This clause provides that an Act that is specified in a Schedule is amended or repealed as set out
in that Schedule, and any other item in a Schedule operates according to its terms.
Schedule 1—Amendments
Fair Work Act 2009
Item 1 inserts EMA participant into section 12 of the Fair Work Act 2009 and has the meaning
given by subsection 140ZKB(2) of the Migration Act 1958.
Item 2 inserts enterprise migration agreement into section 12 of the Fair Work Act and has the
meaning given by subsection 140ZKB(1) of the Migration Act 1958.
Item 3 inserts additional text at the end of the text box in section 528. The text outlines the new
Division 4 that deals with the Minister agreeing to the making of enterprise migration
agreements and provides for the Minister to impose conditions on the agreements. Enterprise
migration agreements are made under Division 3B of Part 2 of the Migration Act 1958.
Item 4 inserts a new Division 4 at the end of Part 3-6 of the Fair Work Act.
Division 4—Enterprise migration agreements
The new section 536A sets out the terms relevant to the Minister agreeing to enterprise
migration agreements.
These include:
1. The Minister must not agree to the making of an enterprise migration agreement unless
the Minister is satisfied that the EMA participant concerned has complied, and will
continue to comply, with workplace laws. This is to ensure that all workers employed
under EMA’s are employed under the same wages, conditions and OH&S standards as
other workers.
2. Subsection (1) does not limit the grounds on which the Minister may refuse to agree to
the making of an enterprise migration agreement.
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The new section 536B sets out the conditions on the making of an EMA that can be imposed by
the Minister.
These can include one or more of the following conditions:
(a)
that the EMA participant concerned has a local jobs plan;
(b)
that the EMA participant concerned employs specified numbers of Australian
residents on the resource project concerned, including persons from one or more of the
following groups:
(i)
people living near the project;
(ii)
people who have been recently retrenched;
(iii)
people from culturally and linguistically diverse communities with high
rates of unemployment;
(iv)
people from indigenous groups;
(v)
people from regions with high rates of unemployment;
(c) that the EMA participant concerned provides specified training to persons employed
in accordance with a condition under paragraph (b);
(d) that the EMA participant concerned provides, or contributes to, training for
Australian residents other than those employed in accordance with a condition under paragraph
(b).
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Migration Act 1958
Item 5 inserts EMA participant into section 5(1) of the Migration Act and has the meaning given
by subsection 140ZKB(2).
Item 6 inserts enterprise migration agreement into section 5(1) of the Migration Act and has
the meaning given by subsection 140ZKB(1).
Item 7 inserts Workplace Relations Minister into section 5(1) of the Migration Act and means
the Minister administering section 1 of the Fair Work Act 2009.
Item 8 inserts a new division after 3A of Part 2 of the Migration Act.
Division 3B—Enterprise migration agreements
The new section 140ZKA sets out the Object of Division 3B which is to regulate the use of
enterprise migration agreements to ensure such agreements are used only where genuinely
necessary and do not adversely affect local job opportunities.
The new section 140ZKB(1) defines enterprise migration agreement as a work agreement with
an EMA participant to grant temporary visas for work on a resources project.
The new section 140ZKB(2) defines EMA participant as either the project owner of the
resources project or the prime contractor for the resources project.
The new section 140ZKC(1) sets out the conditions that must be satisfied before the Minister
can make an EMA.
The conditions are that:
a. the EMA participant has made all practicable attempts to employ local workers for the
jobs to be covered by the enterprise migration agreement, including by advertising the
jobs (other than on the local jobs board); and
b. the jobs have been advertised on the local jobs board.
The new section 140ZKC(2) requires a local jobs board to be maintained by the Workplace
Relations Minister that lists jobs to be filled in the resources sector.
The new section 140ZKD sets out further conditions that the Workplace Relation Minister may
impose on an EMA.
Section 140ZKD(1) sets out that the Minister must not make the enterprise migration
agreement unless the Workplace Relations Minister has agreed to the making of the agreement;
and the agreement is made subject to any conditions imposed by the Workplace Relations
Minister.
Section 140ZKD(2) sets out that a condition imposed by the Workplace Relations Minister must
be given to the EMA participant in writing; and is a sponsorship obligation.
Section 140ZKD(3) sets out that section 140ZKD does not limit the sponsorship obligations that
may be imposed under an enterprise migration agreement.
The new section 140ZKE requires the Minister to cause a copy of the agreement to be tabled in
each House of the Parliament as soon as practicable after an EMA has been made.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
PROTECTING LOCAL JOBS (REGULATING ENTERPRISE MIGRATION
AGREEMENTS) BILL 2012
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill will create a legislative framework for Enterprise Migration Agreements (EMA) to
ensure such agreements are used only where genuinely necessary and do not adversely affect
local job opportunities. The Bill also sets out various conditions that can be included when an
EMA is made.
The Bill will ensure that before employers can get an EMA they must advertise jobs to locals. It
will also require a local jobs board listing jobs to be filled in the resources sector to be
maintained by the Workplace Relations Minister.
Requirements can be placed on employers to train and prioritise employment for locals, recently
retrenched workers and other groups with high unemployment rates.
The Workplace Relations Minister must also be satisfied that the EMA participant concerned has
complied, and will continue to comply, with workplace laws.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Adam Bandt MP
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