Document ID: chunk:federal_register_of_legislation:C2024C00800:section:140gba:p1
Version: federal_register_of_legislation:C2024C00800
Segment Type: section
Provision Reference: s 140GBA (pt 1/3)
Character Range: 380278–383257

140GBA  Labour market testing—condition

Scope
 (1) This section applies to a nomination by a person, under section 140GB, if:
 (a) the person is, or has applied to be, in a class of approved work sponsors prescribed by the regulations; and
 (b) the person nominates:
 (i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and
 (ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and
 (c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.
 (2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.

Labour market testing condition
 (3) The labour market testing condition is satisfied if:
 (a) the Minister is satisfied that the person has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and
 (aa) the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and
 (b) the nomination is accompanied by:
 (i) evidence in relation to that labour market testing of a kind determined under subsection (6A); and
 (ii) if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the person—information about those redundancies or retrenchments; and
 (d) having regard to that evidence, and information (if any), the Minister is satisfied that:
 (i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and
 (ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.
 (4) For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation. The period must not start earlier than 4 months before the nomination is received by the Minister.
 (4A) Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.
 (5) For the purposes of paragraph (3)(aa), the Minister may, by