EXPLANATORY STATEMENT

Migration Regulations 1994

MIGRATION (IMMI 18/047: SPECIFICATION OF TRAINING REQUIREMENTS FOR REGULATION 5.19) INSTRUMENT 2018

(Subparagraph 5.19(10)(c)(i))

1. The instrument, IMMI 18/047, is made under subparagraph 5.19(10)(c)(i) of the Migration Regulations 1994 (the Regulations).
2. The instrument only applies to applications for approval of a nomination lodged on or after the 18 March 2018.
3. Subregulation 5.19(10) of the Regulations makes provisions for occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream.  In particular, paragraph 5.19(10)(c) of the Regulations provides that for a business to be eligible to nominate a visa applicant, the nominator and the nominator’s business must fulfil or, if operating for less than 12 months, have an auditable plan to fulfil, the specified requirements relating to the training of Australian citizens and Australian permanent residents.
4. The instrument operates to set out the training requirements that must be satisfied by all nominators of applicants for a Subclass 186 visa via the Direct Entry stream.
5. The schedule to the instrument outlines the training requirements through two training benchmarks that relate to the training of Australian citizens and Australian permanent residents.  The intent of the training requirements is to ensure that employing overseas workers is not considered as an alternative to training available Australian citizen and Australian permanent resident workers. 
6. The two training benchmarks are Training Benchmark A and Training Benchmark B.  The instrument outlines the following:
   1. Training Benchmark A:
      1. the business must have recent expenditure of at least 2% of its total payroll dedicated to a training fund that operates in a related industry; and
      2. the acceptable expenditure to satisfy Training Benchmark A; and
      3. the types of funds that the expenditure may be made into; and
   2. Training Benchmark B:
      1. the business must have recent expenditure of at least 1% of its total payroll dedicated to relevant employee training; and
      2. the applicable and inapplicable expenditure to satisfy to satisfy Training Benchmark B.
7. The purpose of this instrument is to address the amendments made to the Regulations under the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 and to use plain English and drafting conventions in Schedule 1 to the instrument.  While the language of Schedule 1 has been amended, the requirements have not changed from the previous instrument IMMI 17/074.
8. The subject of the instrument is part of a broad package of reforms for the employer sponsored skilled visa programs, announced by the Government on 18 April 2017. The Department of Home Affairs has engaged with external stakeholders since the announcement in developing the policy settings and considered feedback received.
9. These reforms were also informed by earlier reviews including: the 2014 Independent Review into the integrity of the 457 programme; the 2016 Productivity Commission Inquiry Report: Migrant Intake into Australia; the 2016 Review of the Temporary Skilled Migration Income Threshold; and the 2016 Senate Inquiry A National Disgrace: The Exploitation of Temporary Work Visa Holders. These reviews were subject to extensive consultation processes, including: individuals; academics; bodies and businesses who use the employer sponsored skilled visa programs; migration agents; representatives of foreign governments; the Ministerial Advisory Council on Skilled Migration; and government departments and agencies.
10. A Regulation Impact Statement has been prepared in accordance with advice from the Office of Best Practice Regulation (OBPR). The OBPR Reference number is 21946.
11. Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
12. The instrument commences on 18 March 2018.