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.
Overview
The Migration Regulations 1994 Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2008, made under the authority of the Legislative Instruments Act 2003, was introduced to address the need for updating the minimum salary levels that must be paid to holders of a Subclass 457 (Business Long Stay) visa. This legislation specifies the methodology for calculating these minimum salary levels using a formula, definitions, and illustrative examples, with the primary objective of increasing the minimum salary by 3.8%. This increase is achieved by adjusting the 'applicable base salary' within the formula, tailored according to various factors such as the date of position nomination, visa grant date, occupation, and the visa program. The instrument translates into law the policy enforced by the Department of Immigration and Citizenship (DIAC), ensuring that the minimum salary level is based on the 'applicable base salary' outlined in the legislation from time to time.
Scope and Application
The Migration Regulations 1994 Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2008 applies to employers who sponsor individuals for a Subclass 457 (Business (Long Stay)) visa, ensuring that these sponsored individuals are paid at least the specified minimum salary level. This legislation targets employers, sponsors, and temporary visa holders within the business sector, specifically those nominated for occupations within the Information and Communication Technology field. The regulation is applicable nationally within Australia and operates under the Commonwealth jurisdiction, extending its reach across all states and territories. There are no exclusions or exemptions specified in the Notice, although the minimum salary levels are varied based on factors such as the date of nomination of the position, the date of visa grant, the specific occupation, and whether the visa falls under the standard or regional program. The Notice incorporates the Australian Standard Classification of Occupations (ASCO) by reference, and while it does not detail subordinate instruments, it implies that the Department of Immigration and Citizenship enforces these regulations to ensure compliance with the specified salary thresholds.
Key Provisions
The main provisions of this legislation revolve around the Migration Regulations 1994, specifically Regulation 1.20B, paragraph 1.20CB(1)(i), subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) (paragraph 2). Regulation 1.20B defines the minimum salary level that must be paid to certain Subclass 457 (Business Long Stay) visa holders, while paragraph 1.20CB(1)(i) obligates standard business sponsors to pay a sponsored person at least the gazetted minimum salary. Subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) ensure that the tasks of positions for which applicants for Subclass 457 visas are nominated correspond to the tasks of an occupation specified in a Gazette Notice for the relevant provision.
This legislation imposes several obligations on the parties it governs. Firstly, it mandates that employers who sponsor Subclass 457 visa holders must ensure that the sponsored individuals are paid at least the minimum salary level defined in the Gazette Notice (paragraph 2). Secondly, the tasks of positions for which applicants for Subclass 457 visas are nominated must correspond to the tasks of an occupation specified in a Gazette Notice (paragraph 2). Thirdly, the methodology for calculating the minimum salary level is specified, using a salary formula, definitions and illustrative examples (paragraph 3). This methodology includes the applicable base salary, and either the number of working hours in an average year or the number of weeks in an average year, as the constant values in the formula, and either the number of hours worked in a period or the number of weeks in a period, as the variable value.
In terms of potential offences, penalties, or consequences for breach, the explanatory statement does not provide specific details on the penalties or consequences. However, it is clear that non-compliance with the minimum salary requirements could lead to civil or criminal consequences. Given that the legislation is made under the Migration Regulations 1994, breaches of these regulations could potentially result in visa cancellations, fines, and other penalties as prescribed under the Migration Act 1958. It is also worth noting that the Department of Immigration and Citizenship (DIAC) enforces the relevant policy on behalf of the Government, and therefore any breaches could be investigated and acted upon by DIAC.