Overview

The explanatory statement outlines the Migration Regulations 1994, specifically addressing the Employer Nomination Scheme for occupations, locations, salaries, and relevant assessing authorities. This Instrument was made under the Migration Act 1958 and aims to specify the occupations that tasks of a nominated position may correspond to, the locations where these tasks may be carried out, the skills assessing authorities responsible for determining the suitability of an applicant's skills for specified skilled occupations, and the minimum salary levels that must be paid to an employee in a nominated position. The purpose of this particular instrument is to increase the minimum salary level for the Employer Nomination Scheme by 4.1%, achieved by raising the amount in Column 3 of the instrument by the same percentage. The instrument incorporates by reference the Australian Standard Classification of Occupations (Second Edition) and commenced on 1 July 2009.

Scope and Application

The Migration Regulations 1994, as amended by this instrument, apply to employers, employees, and visa applicants who are involved in the Employer Nomination Scheme. Specifically, employers seeking to nominate skilled workers for employment in Australia must adhere to the criteria set out in this regulation, which includes the specification of occupations, locations, and salaries for nominated positions. The regulation also applies to the assessment of skills by designated assessing authorities for applicants of subclass 856 and subclass 121 visas, ensuring that these applicants meet the requisite skill standards for the nominated occupations. This regulatory framework operates within the Commonwealth jurisdiction and is applicable nationally, given its foundation in the Migration Act 1958. The regulation does not explicitly provide for exclusions or exemptions, but the criteria for occupations, locations, and salaries are outlined in Gazette Notices, which can be amended to reflect changes in the labour market or other considerations. Subordinate instruments, such as Gazette Notices, extend the application of these regulations by detailing specific occupations, locations, and salary thresholds, as well as listing the relevant assessing authorities.

Key Provisions

The key operative sections of the legislation are detailed in Regulation 5.19 of the Migration Regulations 1994, which allows employers to apply for the approval of a nominated position. Subparagraph 5.19(2)(h)(i) specifies that the tasks of the nominated position must match those of an occupation listed in a Gazette Notice. Subparagraph 5.19(2)(h)(ii) requires these tasks to be performed in a location specified in a Gazette Notice. Paragraph 5.19(2)(i) mandates that the salary paid to the employee in the nominated position must meet or exceed the minimum salary specified in a Gazette Notice for the relevant occupation and location. Furthermore, sub-subparagraphs 856.213(b)(i)(A) and 121.211(b)(i)(A) require that applicants for subclass 856 and subclass 121 visas must have their skills assessed by an authority specified in a Gazette Notice for the relevant occupation. Subparagraphs 856.213(b)(ii) and 121.211(b)(ii) stipulate that the salary for applicants in their nominated positions must be at least the amount specified in a Gazette Notice. The legislation imposes several obligations on parties and entities governed by it. Employers must ensure that the tasks of the nominated position align with those of a specified occupation and are performed in a specified location, both as outlined in the Gazette Notice. They are also required to pay the employee a salary that meets or exceeds the minimum specified for that occupation and location. Additionally, applicants for subclass 856 and subclass 121 visas must have their skills assessed by a relevant authority specified in the Gazette Notice. For these applicants, the salary offered in their nominated position must also meet or exceed the specified minimum salary. The legislation includes provisions for civil and criminal consequences for breaches. Failure to comply with the specified salary requirements or other conditions outlined in the Gazette Notices could result in significant penalties. Although the exact penalties are not detailed in the provided text, breaches of migration regulations typically attract fines and, in severe cases, may lead to the cancellation of visas or other immigration-related sanctions. Employers and applicants must adhere to these provisions to avoid any legal repercussions associated with non-compliance. The legislation is designed to ensure that nominated positions align with specified occupations and locations, and that employees are paid a minimum salary as stipulated in the Gazette Notices. This regulatory framework aims to protect the integrity of the Employer Nomination Scheme by ensuring that roles and remunerations meet prescribed standards. The incorporation of the Australian Standard Classification of Occupations (Second Edition) provides a clear framework for assessing and aligning occupations, locations, and salaries, thereby maintaining the scheme's effectiveness and fairness.