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.                  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 paragraph at the time at which the application for approval of the nominated position is made.  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 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 visa application was made.

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.                  Subparagraph 121.211(b) and 856.213(b) requires the applicant to satisfy sub-subparagraphs (i) or (ii).

5.                  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.

6.                  Sub-subparagraph 121.211(b)(i)(B) provides that unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application.  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.

7.                  The Instrument operates to specify an increase base annual salary in column C of the Schedule from $47,480 to $49,330 for the relevant occupations listed in column A.  The purpose of this increase is to align the ENS minimum salary with the annual indexation of the 457 Temporary Skilled Migration Income Threshold according to the Australian Bureau of Statistics’ average weekly earnings data.

8.                  The Instrument operates to include Dog Trainer or Handler (361111) as an occupation listed in column A of the Schedule for the purposes of subparagraph 5.19(2)(h)(i) of the Regulations.  The occupation Slaughterer (831212) is removed from column A of the Schedule and is no longer available for the purposes of subparagraph 5.19(2)(h)(i).  This occupation is being removed as it is no longer considered a skilled occupation within the Australian and New Zealand Standard Classification of Occupations for the purposes of ENS.

9.                  The instrument operates to index the higher salary currently applicable to some of the computing professional occupations at the same rate under the 457 subclass.  This indexation represents a 3.9 percent increase to the salary from $65, 020 to $67,556.

10.              The Instrument also operates to include the Australian Nuclear Science and Technology Organisation (ANSTO) as an assessing authority for teaching or research positions, which they have nominated under Employer Nomination Scheme.  Additionally, the instrument specifies the Australian Institute for Teaching and School Leadership (AITSL) as the assessing authority for the Special needs teachers, Special education teachers nec, Teacher of the hearing impaired and Teacher of the sight impaired.

11.              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.

12.              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.

13.              All relevant stakeholders have been consulted, for examples: clients (ANSTO), VETASSESS and Engineers Australia.

14.              The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required because there is little or no compliance cost on business and no other impacts on business and individuals or on the economy or on competition (OBPR reference 12426, 12590 and12626).

15.              The instrument, number IMMI 11/021, commences  on 1 July 2011.   .