EXPLANATORY STATEMENT
Migration Regulations 1994
MINIMUM SALARY LEVELS AND OCCUPATIONS FOR THE
TEMPORARY BUSINESS LONG STAY VISA
NOTICE 2008
(REGULATION 1.20B, PARAGRAPH 1.20CB(1)(i), SUBREGULATION 1.20G(2) AND SUBPARAGRAPH 1.20GA(1)(a)(i))
- This instrument is made under regulations and 1.20B, paragraph 1.20CB(1)(i), subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) of the Migration Regulations 1994 (‘the Regulations’).
2. Regulation 1.20B of the Regulations defines the minimum salary level to be paid to certain persons who are granted a Subclass 457 (Business (Long Stay)) visa as a level of salary worked out in a way specified in a Gazette Notice. Paragraph 1.20CB requires standard business sponsors to undertake to pay a sponsored person at least the gazetted minimum salary defined by Regulation 1.20B of the Regulations. Subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) of the Regulations provide that the tasks of positions for which applicants for Subclass 457 visas are nominated by employers must correspond to the tasks of an occupation specified in a Gazette Notice for the relevant provision.
3. The Instrument specifies, among other things, the methodology for calculating the minimum salary level using a salary formula, definitions and illustrative examples. The constant values in the formula are the ‘applicable base salary’, and either the number of working hours in an average year, or the number of weeks in an average year. The variable value in the formula is either the number of hours worked in a period or the number of weeks in a period.
4. The purpose of this Instrument is to increase the minimum salary level that must be paid to Subclass 457 visa holders by 3.8%. This is achieved by increasing the ‘applicable base salary’ aspect of the minimum salary level formula by 3.8%. This instrument specifies various ‘applicable base salaries’ by reference to the date the visa holder’s position was nominated, the date the relevant visa was granted, the occupation in relation to which the visa was granted (Information and Communication Technology occupations) and the program (standard or regional) the relevant visa was granted under. Specifying these various ‘applicable base salaries’ in this way means that the ‘applicable base salary’ which applied to a person at a point in time – either the time of nomination of their position or the time of grant of their visa – is increased by 3.8%.
5. In administering the relevant policy on behalf of the Government, the Department of Immigration and Citizenship (DIAC) has to date enforced the minimum salary level that must be paid to a Subclass 457 visa holder as the minimum salary that applied at either the time of visa grant or the time of nomination of the visa holders position. By specifying various ‘applicable base salaries’ according to a variety of relevant factors, the instrument translates into law this enforcement policy. The Government now intends that DIAC administer and enforce the minimum salary level that must be paid to a Subclass 457 visa holder based on the ‘applicable base salary’ that is set out in the instrument from time to time.
6. The following document is incorporated in the Instrument by reference:
- Australian Standard Classification of Occupations (ASCO) Second Edition, 1997, available at http://www.abs.gov.au/AUSSTATS
7. On advice from my department I consider that, having regard to section 18 of the Legislative Instruments Act 2003, consultations were not necessary or were inappropriate as this instrument relates to employment.
8. This Instrument, IMMI 08/066 commences on 1 August 2008.