On this page:
- What is a labour agreement
- Legislative framework
- When is a labour agreement available
- Types of labour agreements
- Exemptions and summary of industry specific requirements
- How to request a labour agreement
- Decision Process
- Nomination ceilings
1. What is a labour agreement
A labour agreement (LA) is a formal agreement entered into between the Minister, or the Employment Minister and a person or organisation in Australia under which an employer is authorised to recruit overseas workers to be employed by that employer in Australia.
LAs are generally in effect for five years and often include additional terms and conditions, with agreements negotiated to ensure that where standard requirements are waived or concessions agreed, additional requirements are implemented where practicable to manage risk effectively.
Important: The LA program is designed to be a flexible solution. As such, LAs can include additional concessions from standard skilled visa requirements. For this to occur, the employer should provide a strong business case and documentary evidence to support their claims.
2. Legislative framework
The LA request process largely sits outside of a legislative framework, with most requirements outlined under policy only.
Migration Act 1958 (the Act) and Migration Regulations 1994 (the Regulations) and associated administrative processes.
The Regulations do, however, set out the requirements that are required to be met where TSS, ENS or SESR nomination or visa applications are lodged under a labour agreement.
In addition, there are provisions in the Act and Regulations that define the terms ‘Work Agreement’ (WA) and ‘Labour Agreement’. The Regulations also include limited provisions regarding requirements for entering into a WA.
As outlined in Regulation 2.76, a Work Agreement is a type of LA. It must:
- be between:
- the Commonwealth, as represented by the Minister, or by the Minister and one or more other Ministers; and
- a person*, an unincorporated association or a partnership; and
- be a LA 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 TSS visa; and
- be in effect (i.e. signed by all parties).
3. When is a labour agreement available
LAs are assessed on a case-by-case basis when a request is received; subject to any existing industry template arrangements in place (see Section Types of labour agreements below).
For a request to be considered, organisations must demonstrate a compelling case supported by strong, relevant and current evidence for the employment of an overseas worker based on:
- exceptional or niche skills of the applicant; or
- Evidence of a labour market shortage (demonstrated by the LA request applicant) and/or confirmed by the Department of Education, Skills and Employment (DESE) (noting that a work agreement has a requirement for, amongst others, labour market testing – regulation 76A).
4. Types of labour agreements
There are currently five types of LAs explained briefly below. More detailed information on these is provided later in this instruction.
i) Company Specific labour agreements
A company specific LA is negotiated directly with an employer. It will only be considered where a genuine skills or labour shortage for an occupation exists which is not already provided for in an industry, or relevant project agreement or Designated Area Migration Agreement (DAMA). The terms and conditions of the agreement are considered on a case-by-case basis.
ii) Global Talent Employer Sponsored Program (GTES) agreements
GTES agreements are for employers seeking to fill a small number of niche highly skilled roles, where their needs cannot be met under existing skilled entry programs. The GTES provides fast processing and flexible concessions for approved participants via one of the two streams available: the Established Business stream or the Start-up stream.
iii) Industry labour agreements
Template LA arrangements are in place for particular industries. LAs executed with employers in these industries contain the same terms and conditions, which have already been agreed to ‘up front’ by the Minister in consultation with key industry stakeholders.
Such streamlined arrangements may be considered if the Department receives a number of similar LA requests from within a given industry, and there is evidence of ongoing labour shortages within that specific industry. They help ensure consistencies across a specific industry through a set of standard terms, conditions and concessions for certain occupations, which will apply to LAs requested in that industry sector.
When an industry LA template is in place, the agreed set of terms and conditions of the industry agreement are non-negotiable and no further concessions (i.e. exemptions from standard skilled visa requirements) can generally be considered.
Industry LAs are currently available for the following industries:
-
- Minister of Religion – Minister of Religion Labour Agreement
- Dairy – Dairy Industry Labour Agreement
- Fishing – Fishing Industry Labour Agreement
- On-Hire – On-Hire Industry Labour Agreement
- Meat – Meat Industry Labour Agreement
- Pork – Pork Industry Labour Agreement
- Restaurant (Fine Dining) – Restaurant (Fine Dining) Industry Labour Agreement
- Advertising – Advertising Industry Labour Agreement
- Horticulture – Horticulture Industry Labour Agreement
- Aged Care Industry Labour Agreement
A copy of the template agreements used for these industries is available on the Department’s website.
Note:
-
- Under policy, other types of labour agreements (e.g. company specific) are generally not available to employers in an industry where an industry LA template is in place. Such requests, where warranted, would need to go to the Minister for a decision.
iv) Designated area migration agreements
A DAMA provides flexibility for states, territories or regions to respond to their unique economic and labour market conditions through an agreement-based framework administered by those regional areas. For more information : Contact us.
v) Project agreements
Project companies with projects endorsed by the Department of Foreign Affairs and Trade under the China-Australia Investment Facilitation Arrangement (IFA) can request a project agreement.
5. Exemptions and summary of industry specific requirements
Company specific agreements – no exemptions without Ministerial approval
A company specific LA cannot be executed if the ANZSCO requirements are not met for the occupation without the approval of the Minister personally.
Industry agreements – limited concessions available
Organisations requesting a LA under certain industry template arrangements have access to specified concessions in terms of salary arrangements as summarised in the table below:
| Agreement | Skills |
| Dairy | Overseas workers must have at least:
· an AQF Certificate III, or equivalent qualifications as assessed by a registered training organisation, and demonstrate at least three years of recent and relevant work experience, or · five years recent and relevant work experience |
| Fishing | Nil concessions for:
· Master Fisher (ANZSCO 231211); · Ship’s Engineer (Fishing Industry) (Code 070499)*; · Ship’s Master (ANZSCO 231213); · Ship’s Officer (ANZSCO 231214). *The skills, qualifications and employment background required are the same as for a Ship’s Engineer (ANZSCO 231212). Overseas workers recruited to Deck or Fishing hand must have: · at least three years recent relevant experience (evidenced by a signed sea-time or log book); · hold safety and rescue certificates compliant with the International Convention on Standards, Training, Certification and Watchkeeping for Seafarers 1978, as amended; · hold a first aid certificate which was awarded in the 12 months prior the nomination. Where the first aid certificate was awarded more than 12 months prior to the nomination, the employer must ensure that the overseas worker attains an Australian first aid certificate within one year of commencing work with the employer. |
| Meat | Overseas workers must:
· have been assessed and verified by a National Meat Industry Training Advisory Council (MINTRAC) registered assessor, or an assessor approved by the Commonwealth, with a Certificate IV in Training and Assessment experienced in meat processing, to be skilled meat workers with a minimum skill level commensurate with the MINTRAC referenced AQF Certificate III in meat processing and: · demonstrate a minimum of three years skilled work experience obtained at a meat processing establishment acceptable to the Parties or · have been working in Australia on a subclass 457 or TSS visa at an Australian meat processing establishment acceptable to the parties for at least nine months prior to being nominated. |
| Minister of Religion | Ministers of religion must have:
· been ‘ordained’ or have ‘professed to a religious life’ as a minister of religion (or equivalent accreditation process within the faith tradition) and · minimum qualifications equivalent to a relevant Australian Qualification Framework (AQF) bachelor degree or · undertaken at least five years of relevant structured training or instruction. Experience does not substitute for this criterion. For Religious Assistants, the nominee must: · possess the relevant qualifications equivalent to a relevant AQF Certificate II or III (ANZSCO Skill Level 4); or · have at least two years of relevant experience as substitute for the formal qualification listed above. |
| On-hire | Nil |
| Pork | Overseas workers must have at least:
· an AQF Certificate III in Agriculture (Pig Production), or equivalent qualifications as assessed by a registered training organisation; and demonstrate at least three years of recent and relevant work experience in a medium to large size commercial piggery; or · five years’ recent and relevant work experience. |
| Restaurant | Nil concessions for Chefs or Cooks.
Overseas Trade Waiter must have : · an AQF certificate III in Hospitality (Restaurant Front of House), or equivalent qualification as assessed by a Registered Training Organisation (RTO); and · at least three years’ experience. |
| Advertising | Nil |
| Horticulture | For approved occupations on the eligible skilled occupations list, any application for a TSS, SESR or ENS visa connected with these occupations must satisfy the skill and qualification requirements under the standard TSS, SESR and ENS visa programs. For approved occupations not on the eligible lists of skilled occupations, any application for a TSS, SESR or ENS visa associated with these occupations must undergo a skills assessment by VETASSESS. |
6. How to request a labour agreement
A request must be sent to the Department.
Requests that do not meet the minimum requirements for processing, will be returned to the requesting organisation without assessment.
Requests that do meet minimum processing requirements will be allocated to an Assessing officer for consideration.
- Contact us to find out minimum requirements that should generally be met in order for a company specific LA to be executed – see:
- section 3.2 Australian registered business with good standing
- section 3.3 Labour Market Need
- section 3.4 Reliance on overseas workers
- section 3.5 Occupation requirements
- section 3.6 Salary requirements and employment conditions
- section 3.7 Skills, qualifications and experience
- section 3.8 English language
- section 3.9 Permanent residence pathways
- section 3.10 Age
- section 3.11 Industry stakeholder consultation
- specific requirements that must be met where a LA is requested under existing DAMA arrangements.
7. Decision Process
The Minister makes LA decisions in the following circumstances:
- Agreeing to enter into new DAMA head agreement.
- Agreeing to implement a new industry template, or changing settings of an existing industry template.
- Entering into any LA that is sensitive or exceptional in nature, likely to attract Media or stakeholder interest.
- Entering into any company specific LA where particular concessions (English language, skills or salary concessions) have been sought.
Authorised officers within the Department are authorised to make decisions on all other LA requests.
The chart below provides further details on LA decision-making arrangements.
Source: Migration Act 1958 (the Act) and Migration Regulations 1994 (the Regulations) and associated administrative processes.
Nomination ceilings
Agreement can include a ‘nomination ceiling’ –a maximum number of TSS and/or ENS nominations that can be approved in each year of an agreement for the next five years.
Ceiling numbers can be agreed upon ‘upfront’.
The Minister must authorise the DAMA agreement. For a DAMA to be approved, efforts must be demonstrated to recruit Australians; first, ceilings must be placed on the numbers of overseas workers employed annually.
Variation to ceiling numbers
Where a variation to ceiling numbers is needed, the sponsor is required to provide the following documentation to the Department so that they consider whether it is appropriate for a Deed of Variation to be prepared and executed:
- updated workforce plans;
- evidence of labour market testing that has been undertaken during the last 12 months;
- evidence of salary arrangements for, and amounts paid to, Primary Sponsored Persons;
- details of any breaches of immigration or other Commonwealth or State/Territory laws;
- the dates, numbers and occupations of any and all Australian workers who have been retrenched or made redundant in the past 12 month period; and
- any additional information requested by the Minister.
Variations to an LA cannot commence until a new written document is executed by or on behalf of all parties. Where a variation has been requested to increase nomination ceilings, nomination applications cannot be lodged until the Deed of Variation has been fully executed.