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))
- The instrument, IMMI 18/047, is made under subparagraph 5.19(10)(c)(i) of the Migration Regulations 1994 (the Regulations).
- The instrument only applies to applications for approval of a nomination lodged on or after the 18 March 2018.
- 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.
- 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.
- 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.
- The two training benchmarks are Training Benchmark A and Training Benchmark B. The instrument outlines the following:
- Training Benchmark A:
- 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
- the acceptable expenditure to satisfy Training Benchmark A; and
- the types of funds that the expenditure may be made into; and
- Training Benchmark B:
- the business must have recent expenditure of at least 1% of its total payroll dedicated to relevant employee training; and
- the applicable and inapplicable expenditure to satisfy to satisfy Training Benchmark B.
- 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.
- 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.
- 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.
- 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.
- 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.
- The instrument commences on 18 March 2018.
Overview
The Migration Regulations 1994 (the Regulations) were enacted to provide the legislative framework for managing Australia's migration program. The instrument IMMI 18/047, which was introduced on 18 March 2018, is made under subparagraph 5.19(10)(c)(i) of the Regulations and specifies the training requirements for Regulation 5.19. This instrument is designed to ensure that employers nominating skilled overseas workers under the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream adequately train Australian citizens and permanent residents. The policy objective is to prevent the use of overseas workers as an alternative to training local workers, thereby maintaining the integrity of the skilled migration program. The instrument was developed following extensive consultation with various stakeholders and is part of a broader reform package aimed at improving the employer sponsored skilled visa programs.
Scope and Application
The instrument IMMI 18/047 applies to businesses seeking to nominate applicants for a Subclass 186 (Employer Nomination Scheme) visa via the Direct Entry stream, specifically for applications lodged on or after 18 March 2018. It mandates specific training requirements for Australian citizens and permanent residents to ensure that the employment of overseas workers does not replace the training of local workers. This regulation outlines two training benchmarks, Training Benchmark A and Training Benchmark B, which require businesses to allocate a certain percentage of their payroll to a training fund or relevant employee training. These benchmarks are designed to ensure that businesses investing in the training of Australian workers are eligible to sponsor skilled migrants under the specified visa subclass. The instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and as such, does not require a Statement of Compatibility with Human Rights.
Key Provisions
The instrument, IMMI 18/047, outlines the training requirements that must be satisfied by all nominators of applicants for a Subclass 186 visa via the Direct Entry stream (subparagraph 5.19(10)(c)(i)). It is made under subparagraph 5.19(10)(c)(i) of the Migration Regulations 1994 and applies to applications for approval of a nomination lodged on or after 18 March 2018. These provisions are designed to ensure that employing overseas workers does not undermine the training of Australian citizens and permanent residents. The instrument establishes two training benchmarks, A and B, which specify the percentage of total payroll that must be spent on a training fund related to the industry (Benchmark A) and on relevant employee training (Benchmark B). Benchmark A requires at least 2% of the payroll to be dedicated to a training fund operating in a related industry, while Benchmark B requires at least 1% to be spent on relevant employee training.
Nominators and their businesses must meet these training benchmarks to be eligible for nominating applicants for a Subclass 186 visa. For businesses operating for less than 12 months, an auditable plan must be in place to demonstrate compliance with these benchmarks. The intent is to ensure that businesses prioritise training Australian citizens and permanent residents over employing overseas workers. This includes specifying the acceptable types of expenditure for the training fund and the relevant training activities that satisfy Benchmark B. Compliance with these requirements is critical for businesses seeking to nominate skilled overseas workers under the Employer Nomination Scheme.
Failure to meet the training benchmarks can result in the disqualification of nomination applications. If a business does not comply with the specified training requirements, the nomination for a Subclass 186 visa may be rejected. This can have significant implications for both the nominator and the visa applicant. While the instrument does not explicitly outline criminal or civil penalties for non-compliance, the consequences of not meeting the training benchmarks can be severe, including the inability to sponsor skilled overseas workers. This could impact the business's ability to fill skill shortages and affect the applicant's visa prospects. The instrument, however, is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and thus, a Statement of Compatibility with Human Rights is not required.