Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 2) (Cth)

Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 2)¹

Select Legislative Instrument 2009 No. 230

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 7 September 2009

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

CHRIS EVANS

Minister for Immigration and Citizenship

Name of Regulations

These Regulations are the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 2).

Commencement

These Regulations commence on the day after they are registered.

Amendment of Migration Amendment Regulations 2009 (No. 5)

Schedule 1 amends the Migration Amendment Regulations 2009 (No. 5), as amended by the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1).

Schedule 1 Amendments

(regulation 3)

[1] Schedule 1, item [9], proposed paragraph 2.57 (1), after definition of Australian organisation

insert

base rate of pay means the rate of pay payable to an employee for his or her ordinary hours of work, but not including any of the following:

(a)incentive-based payments and bonuses;

(b)loadings;

(c)monetary allowances;

(d)overtime or penalty rates;

(e)any other separately identifiable amounts.

Note This definition is based on the definition of base rate of pay in section 16 of the Fair Work Act 2009.

[2] Schedule 1, item [9] after proposed subregulation 2.57 (3)

insert

(3A)In this Part, a set of terms and conditions of employment for a person (the first set) is less favourable than another set of terms and conditions of employment for a person if:

(a)the earnings provided for in the first set are less than the earnings provided for in the other set; and

(b)there is no substantial contrary evidence that the first set is not less favourable than the other set.

[3] Schedule 1, item [9], after proposed regulation 2.57

insert

2.57AMeaning of earnings

(1)In this Part, a person’s earnings include:

(a)the person’s wages; and

(b)amounts applied or dealt with in any way on the person’s behalf or as the person directs; and

(c)the agreed money value of non-monetary benefits.

(2)However, an employee’s earnings do not include the following:

(a)payments the amount of which cannot be determined in advance;

(b)reimbursements;

(c)contributions to a superannuation fund to the extent that they are contributions to which subregulation (4) applies.

Note Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3)Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a)to which the employee is entitled in return for the performance of work; and

(b)for which a reasonable money value has been agreed by the employee and the employer.

(4)This subregulation applies to contributions that the employer makes to a superannuation fund to the extent that 1 or more of the following applies:

(a)the employer would have been liable to pay a superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b)the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997) of the employee;

(c)the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, or of a State or a Territory.

Note This definition is based on the definition of earnings in section 332 of the Fair Work Act 2009.

[4] Schedule 1, item [9], proposed paragraph 2.72 (10) (c)

substitute

(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:

(i)are provided; or

(ii)would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the person’s workplace at the same location; and

(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)are provided; or

(ii)would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

[5] Schedule 1, item [9], after proposed subregulation 2.72 (10)

insert

(10AA) For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

(a)the terms and conditions of employment; and

(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(10AB) Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)the Minister considers it reasonable to do so.

[6] Schedule 1, item [9], proposed subregulation 2.73 (1A)

omit

This regulation applies to a person:

insert

Subregulations (1) to (6) apply to a person:

[7] Schedule 1, item [9], after proposed subregulation 2.73 (6)

insert

Refund of nomination fee — nominations approved before 14 September 2009

(7)Subregulation (8) applies to a person who:

(a)nominated an activity under subregulation 1.20G or 1.20GA (as in force immediately before 14 September 2009); and

(b)did not identify in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Business (Long Stay)) visa as the person who would undertake the activity; and

(c)received approval for the nomination under regulation 1.20H (as in force immediately before 14 September 2009).

(8)The Minister may refund the nomination fee paid by the person for the approved nomination if the person makes a written request for the refund before the approval for the nomination ceases to have effect under subregulation 1.20H (5) (as in force immediately before 14 September 2009).

[8] Schedule 1, item [9], proposed regulation 2.79

substitute

2.79Obligation to ensure equivalent terms and conditions of employment

(1)Subject to subregulation (1A):

(a)this regulation applies to a person who is or was a standard business sponsor of a primary sponsored person if:

(i)the primary sponsored person holds a Subclass 457 (Business (Long Stay)) visa; or

(ii)the last substantive visa held by the primary sponsored person was a Subclass 457 (Business (Long Stay)) visa; and

(b)this regulation applies to a person who is or was a party to a work agreement (other than a Minister), and who is or was an approved sponsor of a primary sponsored person, if:

(i)the primary sponsored person holds a Subclass 457 (Business (Long Stay)) visa; or

(ii)the last substantive visa held by the primary sponsored person was a Subclass 457 (Business (Long Stay)) visa.

(1A)This regulation does not apply to a standard business sponsor of a primary sponsored person if:

(a)either:

(i)the primary sponsored person holds a Subclass 457 (Business (Long Stay)) visa; or

(ii)the last substantive visa held by the primary sponsored person was a Subclass 457 (Business (Long Stay)) visa; and

(b)the annual earnings of the primary sponsored person are equal to or greater than the amount specified by the Minister in an instrument in writing for this paragraph.

(2)Subject to subregulation (2A), the person must ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(2A)For subregulations (2) and (3), if:

(a)the person is mentioned in paragraph (1) (a); and

(b)the nomination by the person of an activity, in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009);

then:

(c)from 14 September 2009 until immediately before 1 January 2010:

(i)subregulations (2) and (3) do not apply; and

(ii)the person must ensure that the primary sponsored person’s salary is not less than the minimum salary level worked out and paid in the way specified by the Minister in an instrument in writing for this paragraph; and

(d)on and after 1 January 2010, subregulations (2) and (3) apply.

(3)Subject to subregulation (2A), the person must ensure that:

(a)if:

(i)the person is mentioned in paragraph (1) (a); and

(ii)the nomination by the person of an occupation in which the primary sponsored person is identified was approved under section 140GB of the Act on or after 14 September 2009;

the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72 (10) (c), were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident; or

(b)if:

(i)the person is mentioned in paragraph (1) (a); and

(ii)the nomination by the person of an activity under regulation 1.20GA (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

(iii)paragraph (d) does not apply;

the primary sponsored person’s base rate of pay is not less than $40 705; or

(c)if:

(i)the person is mentioned in paragraph (1) (a); and

(ii)the nomination by the person of an activity under regulation 1.20G (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

(iii)paragraph (d) does not apply;

the primary sponsored person’s base rate of pay is not less than $45 220; or

(d)if:

(i)the person is mentioned in paragraph (1) (a); and

(ii)the nomination by the person of an activity, in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

(iii)the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa on the basis that subclause 457.223 (6) of Schedule 2 applied to the primary sponsored person;

the primary sponsored person’s base rate of pay is not less than $81 040; or

(e)if the person is mentioned in paragraph (1) (b), the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment set out in the work agreement.

(3A) For the purposes of the terms and conditions set out in a work agreement, the Minister may specify that a minimum salary level is to be worked out in the way specified in an instrument in writing for this subregulation.

Note The terms and conditions of a work agreement may refer to a minimum salary level specified in an instrument in writing.

(4) The obligations mentioned in subregulations (2) and (3):

(a) start to apply on:

(i) the day on which the Minister approves a nomination by the person in which the primary sponsored person is identified; or

(ii) if the primary sponsored person was not identified in an approved nomination — the day on which the primary sponsored person is granted a Subclass 457 (Business (Long Stay)) visa on the basis of the person agreeing in writing to being the approved sponsor of the primary sponsored person; or

(iii) if the primary sponsored person does not hold a Subclass 457 (Business (Long Stay)) visa on the day the Minister approves the nomination — the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; and

(b) end on the earlier of:

(i) the day on which the primary sponsored person is granted a further substantive visa that:

(A) is not a Subclass 457 (Business (Long Stay)) visa; and

(B) is in effect; and

(ii) the day on which the primary sponsored person ceases employment with the person.

[9] Schedule 1, item [9], proposed subparagraph 2.80 (5) (a) (ii)

omit

person; and

insert

person; or

[10] Schedule 1, item [9], after proposed subparagraph 2.80 (5) (a) (ii)

insert

(iii) if the primary sponsored person was not identified in an approved nomination — the day on which the primary sponsored person is granted a Subclass 457 (Business (Long Stay)) visa on the basis of the person agreeing in writing to being the approved sponsor in relation to the primary sponsored person; and

[11] Schedule 1, item [9], proposed subparagraph 2.82 (3) (e) (iv)

omit

most beneficial

[12] Schedule 1, item [9], proposed subparagraph 2.86 (3) (a) (ii)

omit

person; and

insert

person; or

[13] Schedule 1, item [9], after proposed subparagraph 2.86 (3) (a) (ii)

insert

[14] Schedule 1, item [9], after proposed regulation 2.94A

insert

2.94B Failure to pay medical and hospital expenses

(1) This regulation applies to a person who is or was a standard business sponsor in relation to a primary sponsored person or a secondary sponsored person (the sponsored person) whose Subclass 457 (Business (Long Stay)) visa was granted before 14 September 2009.

(2) For subparagraph 140L (1) (a) (ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has not paid a medical or hospital expense incurred by the sponsored person arising from treatment in a public hospital.

(3) The medical or hospital expense:

(a) must be incurred by the sponsored person on or after 14 September 2009; and

(b) must be incurred while the sponsored person is a primary sponsored person or secondary sponsored person in relation to the person; and

(c) must not have been paid under an insurance policy or a reciprocal health agreement between Australia and another country.

(4) For paragraph 140L (1) (b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

(a) the past and present conduct of the person in relation to Immigration; and

(b) the number of occasions on which the person has not paid medical or hospital expenses incurred by a sponsored person arising from treatment in a public hospital; and

(d) the circumstances in which the medical or hospital expenses were incurred; and

(e) any other matter the Minister considers relevant.

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See