Overview

The Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009 was enacted to address the need to update the minimum salary levels for certain occupations under the Migration Regulations 1994. This legislative instrument, made under regulations 1.20B, 1.20CB(1)(i), 1.20G(2) and 1.20GA(1)(a)(i) of the Regulations, was introduced to ensure that the salary thresholds for Subclass 457 (Business (Long Stay)) visas are in line with the movements in all employees’ total earnings, as recorded in the year to November 2008. The policy objective of this instrument is to index these minimum salary levels by 4.1%, thereby maintaining the integrity and competitiveness of the visa program. The Australian Standard Classification of Occupations (ASCO) Second Edition, 1997, is referenced to guide the classification of occupations for the purposes of this notice. It was determined that consultation was neither necessary nor appropriate given the nature of the instrument, which pertains to employment standards. This instrument, IMMI 09/048, came into effect on 1 July 2009.

Scope and Application

The Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009 applies to individuals granted a Subclass 457 (Business (Long Stay)) visa and their employers, who are referred to as standard business sponsors under the Migration Regulations 1994. This Act mandates that employers must pay the sponsored individuals at least the gazetted minimum salary, as specified by regulation 1.20B, which is indexed by a set percentage based on the movement in all employees' total earnings. Furthermore, the occupations for which applicants for Subclass 457 visas are nominated must correspond to those specified in a Gazette Notice, as outlined in subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) of the Regulations. The application of this Act extends across Australia, operating under the Commonwealth jurisdiction. It is important to note that this instrument was made without the need for consultations as it pertains to employment, in accordance with section 18 of the Legislative Instruments Act 2003. The Act came into effect on 1 July 2009.

Key Provisions

The key provisions of the Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009/2 (F2009L02150) are found in regulation 1.20B of the Migration Regulations 1994 (paragraphs 1.20CB(1)(i), subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i)). Regulation 1.20B specifies that the minimum salary level to be paid to certain persons granted a Subclass 457 (Business (Long Stay)) visa must be determined in a manner prescribed in a Gazette Notice. This regulation is designed to ensure that employers pay a minimum salary to sponsored persons, which is indexed to reflect the movement in all employees’ total earnings. Paragraph 1.20CB(1)(i) requires standard business sponsors to commit to paying the sponsored person at least the gazetted minimum salary. Subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i) mandate that the tasks of positions for which applicants for Subclass 457 visas are nominated by employers must align with the tasks of an occupation specified in a Gazette Notice for the relevant provision. These provisions are intended to maintain consistency and fairness in the application of the visa requirements. The Act imposes specific obligations on employers and sponsored persons. Employers must ensure that they are standard business sponsors and that they commit to paying the sponsored person at least the gazetted minimum salary as stipulated in regulation 1.20B. They must also ensure that the tasks of the positions for which applicants for Subclass 457 visas are nominated correspond with the tasks of an occupation specified in a Gazette Notice, as required by subregulation 1.20G(2) and subparagraph 1.20GA(1)(a)(i). Sponsored persons, on the other hand, must ensure that they are aware of and meet the minimum salary requirements and that the tasks of their nominated position align with the specified occupation. These obligations are designed to uphold the integrity of the visa process and protect the interests of both employers and sponsored persons. Failure to comply with the provisions of the Minimum Salary Levels and Occupations for the Temporary Business Long Stay Visa Notice 2009/2 (F2009L02150) can result in various consequences. Employers who do not commit to paying the gazetted minimum salary to sponsored persons may face penalties under the Migration Regulations 1994. Such penalties can include financial fines or, in more severe cases, revocation of the employer's sponsorship authority. Sponsored persons who do not meet the minimum salary requirements may have their visa applications rejected. Additionally, employers who fail to ensure that the tasks of the nominated positions correspond to the specified occupation may also face penalties, including fines or other administrative sanctions. These consequences are intended to enforce compliance with the regulations and ensure the proper functioning of the visa system.