EXPLANATORY STATEMENT

Migration Regulations 1994

MINIMUM SALARY LEVELS FOR THE SUBCLASS 457 TEMPORARY BUSINESS (LONG STAY) VISA, AND RECORDS THAT MUST BE KEPT

(subparagraph 2.79(2A)(c)(ii), subregulation 2.79(3A) and subparagraph 2.82(2)(aa))

1. This instrument is made under subparagraph 2.79(2A)(c)(ii), subregulation 2.79(3A) and subparagraph 2.82(2)(aa) of the Migration Regulations 1994 (‘the Regulations’).
    
2. Regulation 2.79 of the Regulations relates to the obligation to ensure equivalent terms and conditions of employment.  Subregulation 2.79(2) provides that a person to whom the obligation applies must ensure that the terms and conditions of employment provided to a primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
    
3. However, subparagraph 2.79(2A)(c)(ii) of the Regulations provides a limited exception to subregulation 2.79(2) where the relevant Subclass 457 visa was granted in relation to a nomination that was approved prior to 14 September 2009.  The exception provides that from 14 September 2009 until immediately prior to 1 January 2010, the person must ensure that the primary sponsored person’s salary is not less than the minimum salary level worked out and paid in the way specified by the Minister in an instrument in writing.
    
4. Subregulation 2.79(3A) of the Regulations provides that, for the purposes of terms and conditions set out in a work agreement, the Minister may specify that a minimum salary level is to be worked out in the way specified in writing for the purposes of that subregulation.
    
5. The Instrument specifies, for the purposes of subparagraph 2.79(2A)(c)(ii) and subregulation 2.79(3A):

(a)   the methodology for calculating the minimum salary level using a salary formula, definitions and illustrative examples; and

(b)   the frequency with which it should be paid.

6.                  Subparagraph 2.82(2)(aa) of the Regulations provides that all classes of sponsor and parties to a work agreement must keep records of a kind specified by the Minister in an instrument in writing made for this paragraph. 
 

7.                  This Instrument also specifies, for the purposes of paragraph 2.82(2)(aa), that the hours worked by a primary sponsored person is a record that must be kept.
 

8.                  This is because the methodology for calculating the minimum salary level specified in the instrument includes reference to hours worked in a given period.
 

9.                  In accordance with subparagraph 18(2)(f) of the Legislative Instruments Act 2003, consultation was unnecessary as the Instrument relates to employment.
 

10.              This Instrument, IMMI 09/109, commences on 14 September 2009.