EXPLANATORY STATEMENT

Migration Regulations 1994

EMPLOYER NOMINATION SCHEME - OCCUPATIONS, LOCATIONS, SALARIES, AND RELEVANT ASSESSING AUTHORITIES

(SUBPARAGRAPH 5.19(2)(h)(i), SUBPARAGRAPH 5.19(2)(h)(ii), PARAGRAPH 5.19(2)(i), SUB-SUBPARAGRAPH 121.211(b)(i)(A), SUBPARAGRAPH 121.211(b)(ii),
SUB-SUBPARAGRAPH 856.213(b)(i)(A) AND SUBPARAGRAPH 856.213(b)(ii))

1. This Instrument is made under paragraph 5.19(2)(i) and subparagraph 5.19(2)(h)(i), subparagraph 5.19(2)(h)(ii) of the Migration Regulations 1994 (‘the Regulations’), and
   sub-subparagraph 121.211(b)(i)(A), subparagraph 121.211(b)(ii), sub-subparagraph 856.213(b)(i)(A), and subparagraph 856.213(b)(ii) of Schedule 2 to the Regulations.

2.                  Item (1) of the Instrument revokes the previous Instrument number IMMI 09/066 signed by the Minister on 17 June 2009.  Paragraph 5.19(2)(h) and paragraph 5.19(2)(i) of the Regulations provide that the criteria must be assessed by reference to the Gazette Notice in force for the subparagraph at the time at which the application for approval of the nominated position is made.  Instrument number IMMI 09/066 will continue to apply in certain circumstances under paragraphs 5.19(2)(h) and 5.19(2)(i).  The instrument number
IMMI 10/028 has effect only for the purposes of approval of applications for nomination made on or after 1 July 2010.

3.                  Regulation 5.19 provides for the process and criteria for an employer to apply to the Minister for a nominated position to be approved as an approved appointment.  Subparagraph 5.19(2)(h)(i) provides that an employer nomination meets a requirement of subregulation 5.19(2) if the tasks to be performed in the nominated position correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made.  Subparagraph 5.19(2)(h)(ii) provides that an employer nomination meet a requirement of subregulation 5.19(2) if the tasks to be performed in the nominated position will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made.

4.                  Sub-subparagraphs 121.211(b)(i)(A) and 856.213(b)(i)(A) provide that applicants for the grant of a Subclass 121 (Employer Nomination) or a Subclass 856 (Employer Nomination Scheme) visa respectively must have had their skills assessed as suitable by an assessing authority specified by the Minister for the relevant occupation in a Gazette Notice for the relevant sub-subparagraphs.

5.                  However, this requirement does not have to be met by applicants coming within subparagraphs 121.211(b)(ii) and 856.213(b)(ii) that provides for certain applicants for the grant of a Subclass 121 (Employer Nomination) or Subclass 856 (Employer Nomination Scheme) visa respectively, the Minister must be satisfied that the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for these subparagraphs.

6.                  The Instrument operates to specify the occupations that tasks of a nominated position may correspond to, where those tasks may be carried out, which skills assessing authorities are responsible for determining whether an applicant has skills that are satisfactory for specified skilled occupations, and the minimum salary levels that must be paid to an employee in a nominated position.

7.                  The instrument also provides for the annual indexation of the minimum salary levels that must be paid to an employee in a nominated position according to the Australian Bureau of Statistics Average Weekly Earnings data.  This figure is currently 5% that is the annual seasonally adjusted wage change for all Australians.  The minimum salary levels that must be paid to an employee in a nominated position will be indexed upward from
AUD 45,220 and AUD 61,920 to AUD 47,480 and AUD 65,020 respectively.  The base annual salary amount of AUD 165,000 for subparagraphs 121.211(b)(ii) and 856.213(b)(ii) will not be subject to indexation at this time but may be increased in the future following further consultation and review.

8.                  This Instrument does not change the occupations specified in the previous Instrument number IMMI 09/066, but specifies the same occupations by reference to the ANZSCO (Australian New Zealand Standard Classification of Occupation) codes rather than the ASCO (Australian Standard Classification of Occupations) codes used to specify the relevant occupations in the previous Instrument.  This will meet operational requirements of the Department of Immigration and Citizenship (‘the Department’) from 1 July 2010 when the ANZSCO, rather than the ASCO, will become the accepted descriptor of occupations within the Department.  New applications for approval of nominations made on and after     1 July 2010 will need to refer to the relevant ANZSCO code of the occupation. 

9.                  Subsection 56(1) of the Legislative Instruments Act 2003 provides that if the enabling legislation in relation to a legislative instrument as in force at any time before the commencing day required the text of the instrument, or particulars of its making, to be published in the Gazette, the requirement for publication in the Gazette is taken, in relation to any such instrument made on or after that day, to be satisfied if the instrument is registered.

10.              The following document is incorporated in the Instrument by reference:

• ANZSCO means, under regulation 1.03 of the Regulations, the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics as current on 1 July 2010.  This is the ANZSCO - First Edition, Revision 1 (ABS Catalogue No. 1220.0) and is available online at http://www.abs.gov.au.

11.              Affected government departments and agencies were consulted on the proposal to introduce the ANZSCO standard into the Department's skilled migration programs.  These included the Australian Bureau of Statistics, the Department of Education, Employment and Workplace Relations, and the Department of Infrastructure, Transport, Regional Development and Local Government.

12.              State and Territory Governments were consulted via the Commonwealth State Working Party on Skilled Migration (CSWPSM).  This included the ACT Chief Minister’s Department, the NSW Department of State and Regional Development, the NT Department of Business and Employment, the Queensland Department of Employment, Economic Development and Innovation, the Tasmanian Department of Economic Development, Tourism and the Arts, and the SA Department of Trade and Economic Development.

13.              Further, Skills Assessing Authorities were consulted on the transition from ASCO to ANZSCO in the context of the new Skilled Occupation List and Employer Nomination Skilled Occupation List.

14.              The Office of Best Practice Regulation was consulted and advised that because changes from ASCO to ANZSCO are a consequence of the new approach adopted by the Australian Bureau of Statistics for classifying occupations, no regulation impact statement or business cost calculator report was required.

15.              The instrument, number IMMI 10/028, commences on 1 July 2010.